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HomeMy WebLinkAbout10-27470 Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BARBIN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 (717) 506-4670 FRED MARSICANO, 619 Allenview Drive Mechanicsburg, PA 17055 V. STYLINE LOGISTICS 1008 Styline Drive Huntingburg, IN 47542, JF THE FD/-,, 2010 APP 23 Pik 3: 36 F>EN NS'(041 ,,! A Plaintiff Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1 D -- d-l'f I PRAECIPE FOR A WRIT OF SUMMONS To: David Buell, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 Plaintiff, Fred Marsicano, by and through counsel Andrew W. Barbin, P.C., hereby files this Praecipe for a Writ of Summons to be issued to the Defendant, Styline Logistics, in the form attached hereto. Respectfully By: DATED: April 22, 2010 Atty. No. L43571 Andrew W. Barbin, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 (717) 232-9200 Counsel for Plaintiff ? 4? o o I?c? 04?f Co IYDS 80k .r FRED MARSICANO, 619 Allenview Drive Mechanicsburg, PA 17055 V. STYLINE LOGISTICS 1008 Styline Drive Huntingburg, IN 47542, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. l0 - e2"ty ?t u l .?1 WRIT OF SUMMONS To: STYLINE LOGISTICS 1008 Styline Drive Huntingburg, IN 47542 You are hereby notified that Fred Marsicano has commenced civil causes of action against you. DATED: 'y??311 (Seal of Courtt) David Buell, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 C d County Prothonotary =?. :) ef By: (Prothonotary fr Deputy) ANDREW W. BARBIN, ESQUIRE Attorney I.D. 43571 ANDREW W. BARBIN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 717/5064670 FILED MARSICANO, 119 Round Ridge Road Mechanicsburg, PA 17055 V. STYLINE LOGISTICS, 1008 Styline Drive Huntingburg, IN 47542, Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, DOCKET NO. 10-2747 Defendant NOTICE TO: DEFENDANT NAMED HEREIN: c-? e.s C) M M- M «C:) -C« ?+ 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 defense 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 importance to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO OSI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA OLLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJOPARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle 17013 (717) 249-3166 Counsel for Plaintiff DATED: September 23, 2011 2 ANDREW W. BARBIN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 (717) 506-4670 ANDREW W. BARBIN, ESQUIRE Attorney I.D. 43571 ANDREW W. BARBIN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 717/5064670 Attorney for Plaintiff FRED MARSICANO, : IN THE COURT OF COMMON PLEAS 119 Round Ridge Road : CUMBERLAND COUNTY, PENNSYLVANIA Mechanicsburg, PA 17055 Plaintiff, V. DOCKET NO. 10-2747 STYLINE LOGISTICS, 1008 Styline Drive Jury Trial Demanded Huntingburg, IN 47542 Defendant COMPLAINT Plaintiff, by and through counsel, Andrew W. Barbin, P.C., hereby files this Complaint against Defendant, Styline Logistics and avers as follows: PARTIES 1. Plaintiff, Fred Marsicano, is an adult male citizen of Pennsylvania residing at 119 Round Ridge Road, Mechanicsburg, (Cumberland County) Pennsylvania 17055 (hereinafter "Plaintiff") 2. Defendant, Styline Logistics is an Indiana corporation, with its principal place of business located at 1008 Styline Drive, Huntingburg, Indiana 47542 (hereinafter "Defendant"). JURISDICTION AND VENUE 3. At the time of the events at issue, Defendant owned and operated a national Distribution Center located at 1530 Bobali Drive, Suite B, Harrisburg, Pennsylvania 17104- 3223, Dauphin County, Pennsylvania. 4. Defendant regularly conducts business within Cumberland County, Pennsylvania. 5. Plaintiff resides in Cumberland County, Pennsylvania. 6. Therefore, jurisdiction and venue over all claims set forth in this Complaint is proper in the Court of Common Pleas of Cumberland County, Pennsylvania. FACTS COMMON TO ALL COUNTS 7. Prior to employment with Defendant, Plaintiff had worked as a Business Manager at United Parcel Service for over twenty (20) years. 8. Plaintiff began discussing potential employment with Defendant's Senior Vice President of Logistics and Purchasing, Ryan Menke (one of the family co-owners), in July, 2006. 9. Menke made no disclosures regarding any family conflicts in the closely held business. 10. Menke induced Plaintiff to leave stable remunerative employment based on general assurances of a career position with a stable family run business which would value his unique expenence. 11. Menke and consultant Charlie Vollmer indicated that Vollmer would hold an interim Vice President position with Defendant and that Plaintiff's position would be elevated to a Vice President position when Vollmer left. 12. There were clear assurances that the position was intended as a career position and was not intended as probationary, 13. There were also clear assurances that additional support would be hired after Plaintiff had an opportunity to analyze and make recommendations regarding efficient allocations of responsibilities. 14. Previously, the position offered to Plaintiff had been performed by two supervisory personnel; it is believed their titles were Safety Director and Fleet Director. 2 15. On or about July 26, 2006, Plaintiff traveled to Defendant's Huntingburg, Indiana corporate office to finalize employment discussions with Menke and visit the area to look for potential housing. 16. After the visit, Plaintiff wrote to Menke on July 30, 2006, thanking Menke for the visit and outlining Plaintiff's compensation, fringe benefits, and possible relocation expenses. (Attached as Plaintiff Exhibit "A" hereto) 17. In the July 30, 2006 memo, Plaintiff specifically requested Thirteen Thousand Dollars ($13,000.00), three round trip tickets between Huntingburg and Harrisburg, and one week off to cover relocation logistics and expenses. 18. Menke responded to Plaintiff stating that Plaintiff would be awarded Thirteen Thousand Dollars ($13,000.00) to cover relocation expenses and Six Hundred Dollars ($600.00) a month for apartment housing expenses until Plaintiff could move into permanent housing. 19. Defendant personnel also arranged for a realtor to assist in house hunting. 20. Menke indicated that Defendant would provide Plaintiff with an additional week off in order to move and with One Thousand Five Hundred Dollars ($1,500.00) towards airfare to be used for Plaintiff to visit his family in Mechanicsburg until they moved to Huntingburg. 21. In addition, Defendant arranged to fly Plaintiff along with Plaintiff's wife and children to the Huntingburg, Indiana, area to check out schools and look for housing. 22. Plaintiff accepted the terms outlined by Menke in the July 30, 2006 memo on August 4, 2006 (see Exhibit A attached). 23. Plaintiff moved from his Mechanicsburg home to 4170 West Brookstone Court, Jasper, Indiana 47546, and began work as Director of Safety at Defendant's Huntingburg, Indiana office in September 2006. 3 24. In November 2006, Plaintiff committed to a purchase price of Four Hundred Thirty- Five Thousand Dollars ($435,000.00) for the Jasper, Indiana home. 25. Prior to accepting the position, Plaintiff was assured by Menke that he would be able to hire two additional individuals to perform essential subordinate functions. 26. This was confirmed in face-to-face discussions after Plaintiff's hiring and before the purchase of his Indiana home. 27. It is believed and averred that Defendant intended to materially alter the duties of Plaintiff's position after he purchased a home, from the outset, knowing that he would then be economically stuck and would not be in a position to refuse unreasonable demands and denial of promised assistance. 28. It had been agreed that Plaintiff would perform an initial assessment of specific needs before assistants would be hired. 29. By mid-November 2006, Plaintiff made it clear that administrative assistance, at minimum, was immediately required. 30. Initially, the request was deferred by an offer to share the use of administrative staff pending final assessment of needs, which never materialized in any meaningful way. 31. Thereafter, Plaintiff made continuing requests for administrative personnel from November 2006 until the time of his termination. 32. By November 29, 2006, Defendant was aware that Plaintiff had executed agreements for the purchase of a home in Jasper, Indiana. 33. Immediately, relations altered considerably. 4 34. On or about November 29, 2006, Plaintiff received a negative Performance Review from then Vice President Charlie Vollmer, in which Vollmer indicated that if Plaintiff did not feel he could succeed, he should not move his family to Indiana. 35. By that time, contracts for relocation had already been executed. 36. There was no reasonable basis for the pre-textual criticisms raised. 37. On Plaintiffs birthday, December 21, 2006, Vollmer and Menke assigned additional unreasonable tasks to Plaintiff with no additional support. 38. Nonetheless, by extraordinary effort, each assigned task was completed by the February 28, 2007 deadline assigned. 39. In April 2007, Plaintiff was assigned still more responsibilities including procurement of all company vehicles, oversight of dispatch operations, driver management and oversight of diesel and body shop operations. 40. These duties had previously been shared among Vollmer, Menke, Jolene Davis and a contemporaneous hire, Bob Nenendall (who was terminated prior to Plaintiff). 41. Purchasing had also previously been by department, rather than consolidated. 42. The additional responsibilities resulted in an at least 50% increase in Plaintiff's responsibilities without a pay raise. 43. When Plaintiff inquired as to why he received more work without a pay raise, Menke stated that Plaintiff was "paid handsomely" for his duties and that since he started at such a high salary, he needed to be given more work. 44. It is believed and averred that Defendant fraudulently induced Plaintiff to take the position with intent to materially alter the burdens of his position after his mortgage effectively prevented him from complaining or leaving. 5 45. Pursuant to Plaintiff's continuing request for administrative assistance in the later summer, early fall of 2007, Vollmer agreed that Plaintiff could share an administrative employee one day a week. 46. However, whenever Plaintiff asked for a commitment on which day the administrative employee could be used, the administrative employee was always unavailable. 47. Plaintiff never actually received any material administrative support. 48. Despite adverse circumstances arising from unreasonable additional burdens and a lack of support, Plaintiff performed in an exemplary manner. 49. By December 2007, Rich Gilson, who had previously been an employee in Defendant's Harrisburg operations, was brought to Indiana to replace Mr. Vollmer. 50. Gilson gave Plaintiff a December 2007 performance evaluation which included unreasonable and unfounded criticisms; but the overall rating was good and Plaintiff was assured by Gilson that his position was not in jeopardy. 51. It is believed and averred that the evaluation was designed to keep Plaintiff on the defensive and make him less marketable to third parties. 52. In March 2008, while Plaintiff was on vacation, he received an email from Craftsman Construction (a related family company of Defendant) requesting expedited treatment for an oversized load permit. 53. Plaintiff replied that he was on vacation, did not believe the form was applicable, and that it should be reviewed by Jim Harris, the Vice President of Risk Management. 54. Plaintiff was not an employee of Craftsman Construction and his employer did not provide such certifications or documentation for Craftsman in its ordinary course of business. 6 55. The owner's son blew up orally to Plaintiff complaining about the turn-around time for the oversized load permit. 56. Harris eventually responded with a referral to counsel who ultimately confirmed that Plaintiff had been right and that an alternate process was required and the matter was then promptly addressed. 57. Notwithstanding the appropriate handling of the matter, Plaintiff was berated by John Menke (head of Craftsman) and Mr. Gilson for his refusal to proceed with the illegal and improper process, despite confirmation by corporate counsel that Plaintiff's actions were in fact proper. 58. Maintaining registrations for the vehicles of other companies was not part of Plaintiff's original job description. 59. There was no tracking system or similar report mechanism which would have allowed Plaintiff to be aware of the equipment inventory and registration status of utility trailers and similar equipment of the related companies. 60. Plaintiff was not an employee of the related company nor was there a services agreement between the companies of which he was aware. 61. Nonetheless, because they were related family owned companies and despite the unreasonable additional burdens already imposed, Plaintiff would facilitate such registrations on request because of his greater familiarity with the process. 62. During the same vacation as the above improper certification request, Plaintiff received an email indicating that a utility trailer had an expired registration. 63. Plaintiff replied that he would expedite renewed registration on return with the clear and unequivocal instruction that the unregistered trailer was not to be used until it was re-registered. 7 64. Despite this express instruction, the utility trailer was used, was subsequently stopped, and fines and penalties were incurred. 65. Despite having conducted himself entirely appropriately, Plaintiff was berated for this incident as well. 66. Plaintiff objected to various illegal and improper practices conducted by Defendant relating to driver safety and tax reporting. 67. In each case, Defendant declined to correct the practice and increased adverse comment and conduct toward Plaintiff, including but not limited to, intentionally using a fuel source which would not date and time stamp fuel purchases in order to facilitate known violations of road time restrictions, and fraudulent characterization of personal expenditures as business expenditures, e.g. remodeling of a Florida vacation home as improvements to one of the plants. 68. Because of Plaintiff's internal attempts to ensure regulatory and statutory compliance, Plaintiff was subjected to harassment and pre-textual criticism. 69. On or about April 1, 2008, Plaintiff was given a thirty (30) day notice. 70. Plaintiff was ultimately discharged from his position with Defendant in April, 2008. 71. Plaintiff's discharge was retaliation for his attempts to secure regulatory compliance and was without cause and based on false and pre-textual criticisms. 72. As a result of his discharge, Plaintiff moved back to Mechanicsburg, Pennsylvania, and subsequently filed for bankruptcy in 2009. 73. Plaintiff's Jasper, Indiana home was foreclosed upon and eventually sold at short sale on February 25, 2011 for Three Hundred Fifteen Thousand Dollars ($315,000.00). 74. Plaintiff suffered a loss of One Hundred Twenty Thousand Dollars ($120,000.00) on the short sale of his Indiana house as a result of the resale. 8 75. Plaintiff suffered and continues to suffer lost and diminished wages as the result of the fraudulent inducement and wrongful discharge in a currently unliquidated amount in excess of the local arbitration amount. Count I - Fraudulent Inducement 76. Paragraphs 1 through 75 are incorporated by reference, as if restated verbatim. 77. Defendant fraudulently induced Plaintiff to leave stable remunerative employment with United Parcel Service based on general assurances of a career position with Defendant which also included administrative assistance. 78. Defendant had no intentions of fulfilling its promise to Plaintiff in providing a career position with administrative assistance, but only made such promises to induce Plaintiff to move to Indiana where his duties would be unreasonable altered and Plaintiff would be in no position to complain or leave. 79. Plaintiff reasonably relied on Defendant's assurances of a career position with administrative assistance in purchasing a home and moving himself and his family from Mechanicsburg, Pennsylvania, to Huntingburg, Indiana. 80. As the direct and proximate result of the wrongful conduct Plaintiff suffered unliquidated compensatory damages, relocation expenses, attorney's fees. 81. Plaintiff seeks recovery of the unliquidated compensatory damages. 82. Defendant's actions were fraudulent, willful, intentional, malicious, and in reckless disregard for the rights of Plaintiff such that punitive damages should also be awarded. WHEREFORE, Plaintiff seeks judgment against Defendant for compensatory and punitive damages in an unliquidated amount in excess of the local arbitration amount, relocation expenses, attorney's fees, and such other relief as the court deems just. 9 Count II - Wrongful Discharge Public Policy 83. Paragraphs 1 through 82 are incorporated by reference, as if restated verbatim. 84. Irritation at Plaintiff's adherence to federal safety regulations and refusal to condone or permit continued violations was a substantial factor in the decision to terminate Plaintiff. 85. The discharge was contrary to public policy, wrongful, malicious and outrageous. 86. As the direct and proximate result of the wrongful conduct Plaintiff suffered unliquidated compensatory damages, relocation expenses, attorney's fees. 87. Plaintiff is seeking compensatory damages, relocation expenses, attorney's fees, and such other relief as the court deems just. 88. Defendant's actions were fraudulent, willful, intentional, malicious, and in reckless disregard for the rights of Plaintiff such that punitive damages should also be awarded. WHEREFORE, Plaintiff seeks judgment against defendant for compensatory and punitive damages in an unliquidated amount in excess of the local arbitration amount, relocation expenses, attorney's fees, and such other relief as the court deems just. Count III - Interference with Contractual Relations 89. Paragraphs 1 through 88 are incorporated by reference, as if restated verbatim. 90. Defendants discharged Plaintiff for false and pretextual reasons, and denied him a reference, causing self-publication of the defamatory fact of his termination to avoid an unexplained hole in his employment history. 91. On information and belief, Defendant made defamatory communications to prospective employers by falsely repeating directly or by implication in a false light, the false allegations that he had been discharged for deficiencies in performance. 10 92. As direct and proximate result of the interference, Plaintiff suffered an extended period of unemployment and under employment, as well as expense of maintaining multiple residences while accepting the only available employment at a location remote from his family and the home purchased for employment with Defendant. 93. Plaintiff is seeking compensatory damages, relocation expenses, attorney's fees, and such other relief as the court deems just. 94. Defendant's actions were fraudulent, willful, intentional, malicious, and in reckless disregard for the rights of Plaintiff such that punitive damages should also be awarded. WHEREFORE, Plaintiff seeks judgment against defendant for compensatory and punitive damages in an unliquidated amount in excess of the local arbitration amount, relocation expenses, attorney's fees, and such other relief as the court deems just. COUNT IV - BREACH OF IMPLIED CONTRACT 95. Paragraphs 1 through 94 are incorporated by reference, as if restated verbatim. 96. Plaintiff was a professional offered a career position at a remote location. 97. Defendant knew that the expenses and financial obligations inherent and disclosed regarding the relocation greatly exceeded allowances and were incurred based on express and implied assurances of a career position in accordance with the representations made as to duties assistance and career longevity with sufficient performance. 98. Under Pennsylvania law an employer is deemed to have made an implied commitment for employment of reasonable duration in proportion to the expense and obligations undertaken. 99. Plaintiff entered into an implied contract with Defendant to employ Plaintiff as Director of Safety for a reasonable period of time. 11 100. Defendant breached this implied contract by failing to employ Plaintiff for a reasonable amount of time and under reasonable conditions upon Plaintiff's relocation to Huntingburg, Indiana. 101. As the direct and proximate result of the wrongful conduct Plaintiff suffered unliquidated compensatory damages, relocation expenses, attorney's fees. 102. Plaintiff is seeking compensatory damages, relocation expenses, attorney's fees, and such other relief as the court deems just.. WHEREFORE, Plaintiff seeks judgment against Defendant for compensatory damages in an unliquidated amount in excess of the local arbitration amount, and relocation expenses, together with attorney's fees and such other relief as the court may*e? '-- / Ai?drew W. Barbin, Es u Atty. I43571 ANDREW W. KARBIN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 717-506-4670 Attorney for Plaintiff Date: September 23, 2011 12 ANDRELVW BARUM,ESQLUF1E AtWrngyLD 43571 ANDRxw W. BARBw, P.C. 51(aeey Court; suite 102 Mec4aniesbnrg, PA 17055 717/506-4670 Attorney for Plaintiff FRED MARS]CANO, : IN THE COURT OF COMMON PLEAS 119 Round Ridge Road : CUMBERLAND COUNTY, PENNSYLVANIA, Mechanicsburg, PA 17055 P1aeu#iff, V. : DOCKET NO.10 2747 STYLINE LOCI ucs, 1408 Styline Drive Huntingburg, IN 47542, Defendant VERIFICATION X, Fred Marsicano, do hereby state that the statements made in the foregoing complaint are true and correct based upon my knowledge information and belief I understand that false statements are made subject to penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Fred Marsi?cano???_ Dated: September 22, 2011 FOX ROTHSCHILD LLP By: Andrew W. Bonekemper/Jason Vishio Identification No.: 84313/94102 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 (610) 397-6500 FRED MARSICANO, Plaintiff, V. STYLINE LOGISTICS, Defendant. L. . iJi T ?ry -",MBERLA?ID COUNT"' PENSYLVANIA Attorneys for Defendant, Styline Logistics IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA : CIVIL ACTION-LAW CASE NO.: 10-2747 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as counsel for Defendant Styline Logistics in the above- captioned matter. Andrew onekemper, Esquire PA Attorney I.D. No. 84313 FOX ROTHSCHILD LLP 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422 (610) 397-6500 (610) 397-0450 (fax) Dated: October 19, 2011 FOX ROTHSCHILD LLP By: Andrew W. Bonekemper/Jason Vishio Identification No.: 84313/94102 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 (610) 397-6500 `_ Attorneys for Defendant, Styline Logistics FRED MARSICANO, Plaintiff, V. STYLINE LOGISTICS, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION-LAW CASE NO.: 10-2747 TO: PLAINTIFF, FRED MARSICANO NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Defendant's Preliminary Objections to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. FOX LLP An w W. Bonekemper, Esquire P Attorney I.D. No. 84313 Jason N. Vishio, Esquire PA Attorney I.D. No. 94102 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422 (610) 397-6500 (610) 397-0450 (fax) Dated: October 19, 2011 FRED MARSICANO, Plaintiff, V. STYLINE LOGISTICS, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION-LAW CASE NO.: 10-2747 ORDER AND NOW, this day of , 2011, it is hereby ORDERED and DECREED that the Preliminary of Objections of Defendant, Styline Logistics to Plaintiff, Fred Marsicano's ("Marsicano's") Civil Action Complaint be SUSTAINED and that: (1) Marsicano's cause of action for Fraudulent Inducement be DISMISSED; (2) any and all of Marsicano's demands for attorneys' fees be DISMISSED and/or STRICKEN; (3) Marsicano's cause of action for Breach of Implied Contract be DISMISSED; (4) Marsicano's cause of action for Tortious Interference with Prospective Contractual Relations be STRICKEN and/or DISMISSED; (5) any and all of Marsicano's demands for punitive damages be DISMISSED and/or STRICKEN; and (6) Marsicano's cause of action for Wrongful Discharge be DISMISSED. BY THE COURT: J. FOX ROTHSCHILD LLP By: Andrew W. Bonekemper/Jason Vishio Identification No.: 84313/94102 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 (610) 397-6500 Attorneys for Defendant, Styline Logistics FRED MARSICANO, Plaintiff, V. STYLINE LOGISTICS, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION-LAW CASE NO.: 10-2747 PRELIMINARY OBJECTIONS OF DEFENDANT, STYLINE LOGISTICS TO PLAINTIFF, FRED MARSICANO'S CIVIL ACTION COMPLAINT 1. FACTUAL ALLEGATIONS OF THE COMPLAINT: 1. The Complaint alleges that as of the Summer of 2006, Plaintiff, Fred Marsicano ("Marsicano") was a resident of the Commonwealth of Pennsylvania. Attached hereto as Exhibit "A" is a true and correct copy of the Complaint. Id. at ¶ 23. 2. The Complaint alleges that at all times relevant hereto Defendant, Styline Logistics ("Styline") was an Indiana corporation, with its principal place of business in Huntingburg, Indiana. See Exhibit "A", ¶ 2. 3. The Complaint alleges that in July of 2006 Marsicano began discussing the possibility of gaining employment with Styline, as Fleet and Safety Director of Styline's Huntingburg, Indiana office, with Ryan Menke ("Menke"), a senior vice president of logistics and purchasing of Styline. Id. at ¶ 8. 4. The Complaint alleges that on or about July 26, 2006, Marsicano traveled to Huntingburg, Indiana to further negotiate the terms of his possible employment with Menke and Styline and to look for potential housing. Id. at ¶ 15. 5. Exhibit "A" to the Complaint alleges that as a result of the parties' negotiations Styline agreed to pay Marsicano one hundred thousand dollars ($100,000.00) per year. See Exhibit "A" to the Complaint. 6. The Complaint, as well as, Exhibit "A" to the Complaint, alleges that as a further result of the parties' negotiations, Styline additionally agreed to provide Marsicano with: (a) thirteen thousand dollars ($13,000.00) toward "relocation" expenses; (b) six hundred dollars ($600.00) per month for housing expenses, until Plaintiff was able to locate more permanent housing; (c) profit sharing; (d) medical benefits, (including temporary Cobra coverage); (e) an additional week off to relocate; (f) fifteen hundred dollars to be used toward airfare to visit his family; (g) life insurance; (h) three weeks paid vacation; (i) a flexible schedule at first on Fridays and Mondays allowing Marsicano to visit his family; and 0) eligibility for a subjective Christmas bonus. Id. at ¶ 18 & 20 and Exhibit "A" to the Complaint. 7. The Complaint alleges that Styline even arranged for a realtor to assist Marsicano with locating whatever form of housing Marsicano and/or his family elected to pursue and flew Marsicano and his family to Huntingburg, Indiana to visit the local schools and to look for housing. Id. at ¶ 19 & 21. Interestingly enough, the Complaint does not allege that Styline failed to provide Marsicano with any of the salary and/or numerous other benefits set forth in Paragraphs 6 and 7 herein, above. 2 9. The Complaint alleges that Styline assured Marsicano that he would be provided with what Marsicano refers to as a "career position" at Styline. Id. at ¶ 10. 10. In addition, the Complaint alleges that Styline promised that it would eventually hire "additional support" to assist Marsicano in the performance of his job duties, after Mariscano was given the opportunity to analyze and make recommendations regarding the efficient allocation of responsibilities. Id. at ¶ 13 & 25. 11. The Complaint alleges that Marsicano accepted employment with Styline, on such terms as outlined in a July 30, 2006 memo, which was attached to the Complaint as Exhibit "A". Id. at ¶ 22. 12. Exhibit "A" to the Complaint does not contain any specified time-period of guaranteed employment that Styline promised Marsicano. See Exhibit "A" to the Complaint. 13. Marsicano commenced his employment with Styline in September of 2006. Id. at 123. 14. The Complaint alleges that, in November 2006, Marsicano elected to purchase a home in Jasper, Indiana for the price of four hundred and thirty five thousand dollars ($435,000.00). Id. at ¶ 24. 15. The Complaint alleges that immediately after Styline learned that Marsicano had committed to purchase a home in Jasper, Indiana, which resulted in Marsicano being rendered "economically stuck" in his job and unable to refuse any subsequent unreasonable demands, Styline intended to, and did, materially alter Marsicano's job duties. Id. at ¶ 27 & 32. 16. The Complaint also alleges that immediately after Styline learned that Marsicano had committed to purchase a home in Jasper, Indiana, Marsicano received a negative 3 performance review on or about November 29, 2006, from Charlie Vollmer, vice president of Styline. Id. at ¶ 34. 17. The Complaint alleges that during that November 29, 2006 negative performance review, Charlie Vollmer indicated that if Marsicano did not feel that he could succeed at his employment position with Styline that Marsicano should not move his family to Indiana. Id. 18. The Complaint alleges that after the November 29, 2006 negative performance review, Charlie Vollmer and Menke assigned Marsicano a number of "unreasonable" work- related tasks, which Marsicano believed that he completed by "extraordinary effort" within the assigned deadline. Id. at 13 7 & 38. 19. The Complaint alleges that, after the November 29, 2006 negative performance review, Marsicano's employment responsibilities were increased, without a corresponding pay raise, by approximately 50% when he was assigned a number of job duties that were previously shared among four (4) Styline representatives: Charlie Vollmer, Menke, Jolene Davis and Bob Nenendall. Id. at ¶ 40. 20. The Complaint also alleges that Marsicano's requests for administrative assistance were deferred by an offer by Styline to share the use of administrative staff, which never materialized in any meaningful way. Id. at ¶ 30. 21. The Complaint alleges that in December of 2007 Rich Gilson of Styline gave Marsicano a negative performance evaluation, "which included unreasonable and unfounded criticisms ...." Id. at 150. 22. The Complaint alleges that notwithstanding the December 2007 negative performance review, Rich Gilson's overall rating of Marsicano was "good" and Marsicano was assured that his employment with Styline was not in jeopardy. Id. 4 23. The Complaint alleges that Mr. Gilson's December 2007 negative performance review was "designed to keep [Marsicano] ... on the defensive and make him less marketable to third parties." Id. at ¶ 51. 24. The Complaint alleges that on a number of occasions after the December 2007 negative performance review, Marsicano complained internally to representatives of Styline regarding certain "illegal and improper" acts or practices on behalf of Styline and other "related family" companies. Id. at 152-57. 25. The Complaint alleges that Marsicano was "berated" by Menke and Mr. Gilson for objecting to such acts or practices. Id. at ¶ 57. 26. The Complaint alleges that Marsicano also internally complained about certain, additional illegal and improper practices of Styline, including but not limited to Styline's alleged illegal and improper practices related to driver safety and tax reporting. Id. at ¶ 66-67. 27. The Complaint alleges that because of Marsicano's internal complaints regarding these illegal and improper acts and practices, Marsicano was subjected to harassment and pre- textual criticism, which resulted in his eventual discharge on May 2, 2008, after thirty (30) days notice being given. Id. at ¶ 68-71. 28. The allegations of the Complaint establish that Marsicano worked for Styline for more than 1 and % years before he was discharged. 29. The Complaint alleges that as a result of being discharged, Marsicano's four hundred and thirty five thousand dollar ($435,000.00) home was foreclosed upon and eventually sold at short sale for three hundred and fifteen thousand dollars ($315,000.00).1 Id. at ¶ 73. The Complaint fails to allege, however, that during Mariscano's period of employment with Styline the subprime mortgage crisis occurred, causing a serious decline in the United States' housing market. 5 30. The Complaint alleges that as a result of being discharged, Marsicano moved back to Pennsylvania and filed for bankruptcy in 2009. Id. at T 72. 31. Finally, the Complaint alleges that, at the present time, Marsicano continues to suffer lost and diminished wages as a result of Styline's wrongful actions in excess of the amount of fifty thousand dollars (<$50,000.00). Id. at T 73. 32. Based upon these allegations, Marsicano advances the following causes of action against Styline: (1) Fraudulent Inducement to Contract; (2) Wrongful Discharge; (3) Tortious Interference with Prospective Contractual Relations; and (4) Breach of Implied Contract. II. PRELIMINARY OBJECTIONS: 33. Paragraphs 1 through 32 are incorporated by reference, as if set forth at length, herein. 34. Regardless of whether Indiana's or Pennsylvania's substantive law governs each of Marsicano's causes of action in the Complaint, Pennsylvania's conflict of law rules direct that a Pennsylvania court should apply Pennsylvania's procedural laws when it is serving as the forum state for a lawsuit. See Larrison v. Larrison, 750 A.2d 895, 898 (Pa.Super. 2000). 35. Therefore, the Pennsylvania standard for preliminary objections, which is considered procedural, applies to the present Preliminary Objections. See Branca v. Conley, 2001 WL 1807403 (Pa.Com.Pl.). A. FIRST PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) TO MARSICANO'S CAUSE OF ACTION FOR FRAUDULENT INDUCEMENT. 36. Paragraphs 1 through 35 are incorporated by reference, as if set forth at length, herein. 6 1. Choice of Law: 37. Pursuant to Pennsylvania's choice of law analysis the first step is always to determine whether the substantive laws of the competing states actually differ. See, e.g., Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 702 (Pa.Super. 2000); Thibodeau v. Comcast Corp., 912 A.2d 874 (Pa.Super. 2006). 38. If there is no relevant and true conflict, no further analysis is necessary and the substantive law of the forum state (i. e. Pennsylvania) is applied. Id. 2. Marsicano's Cause of Action for Fraudulent Inducement Must be Dismissed Because Both Indiana and Pennsylvania Law Bars Any Fraud Claim, Including Fraudulent Inducement, Which is Based Upon Promises Related to Future Actions and/or Conduct. 39. Under both Indiana and Pennsylvania law, Marsicano's cause of action for fraudulent inducement fails because such a cause of action may only be based upon a misrepresentation of a past or existing material fact, which induced plaintiff's reliance. See Neale v. American Motorists Fire Ins. Co., 138 A.2d 290, 291 (Pa.Super. 1958) (citing Sellers v. Sellers, 316 Pa. 404; First National Bank of Hooversville v. Sagerson, 283 Pa. 406; Blose v. Martens, 173 Pa.Super. 122, 123); see also Maynard v. 84 Lumber Co., 657 N.E.2d 406, 409 (Ind.App. 1995) (citing Baker v. American States Ins. Co., 428 N.E.2d 1342 (Ind.App. 1981)) (holding that fraud claims must be based upon "material misrepresentation[s] of past or existing facts) (emphasis added). 40. Thus, a promise to do something in the future, not kept, can never constitute fraud. See Maynard, supra (citing cases which hold that "fraud may not be based on representations regarding future conduct, or on broken promises, unfulfilled predictions, or statements of existing intent which are not executed."); see also Neale, supra. 7 41. Stated another way, a breach of an agreement to take some action in the future cannot constitute fraud or fraudulent inducement. See Levin v. Garfinkle, 492 F.Supp. 781, 806 (E.D.Pa. 1980); see also Siegel v. Williams, 818 N.E.2d 510 (Ind.App. 2004)(holding that essential elements of fraud are essentially no different than essential elements for fraudulent inducement). 42. Because Marsicano's cause of action for fraudulent inducement is based solely upon Styline's alleged promise to provide him with future employment spanning Mariscano's "career", as well as, Styline's alleged promise to provide him with future administrative assistance, Marsicano's claim for fraudulent inducement cannot survive the instant demurrer and must be dismissed. See Exhibit "A", ¶ 77-82. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection in the nature of a demur and DISMISSING, Plaintiff, Fred Marsicano's cause of action for Fraudulent Inducement, with prejudice, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. B. SECOND PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(4) AND/OR 1028(a)(2) TO MARSICANO'S DEMAND FOR ATTORNEYS' FEES. 43. Paragraphs 1 through 42 are incorporated by reference, as if set forth at length, herein. 1. Choice of Law: 44. As set forth infra, herein, under either Indiana and Pennsylvania law, Marsicano's demands for attorneys' fees must be dismissed. 8 2. Marsicano's Demands for Attorneys' Fees Must be Dismissed Because both Indiana and Pennsylvania Adhere to the "American Rule", Which Generally Requires a Party to Pay Their Own Attorneys' Fees. 45. Both Indiana and Pennsylvania follow the American Rule in regard to attorneys' fees. See, e.g., De Lage Landen Financial Services v. Rozentsvit, M.D., 939 A.2d 915 (Pa.Super. 2007); Fackler v. Powell, 891 N.E.2d 1091 (Ind.App. 2009). 46. The American Rule provides that there can be no recovery of attorneys' fees from an adverse party absent an express statutory authorization, a clear agreement by the parties or some other well-established exception. See De Lage, supra at 923; Fackler, supra at 1098. 47. In the instant case, because there is no applicable exception to the American Rule requiring all parties to pay their own attorneys' fees, any and all of Marsicano's demands for attorneys' fees must be dismissed and/or stricken from the Complaint. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection and DISMISSING/STRIKING, Plaintiff, Fred Marsicano's demands for attorneys' fees, with prejudice, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. C. THIRD PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(4) TO MARSICANO'S CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT. 48. Paragraphs 1 through 47 are incorporated by reference, as if set forth at length, herein. 1. Choice of Law: 49. Pursuant to Pennsylvania's choice of law analysis the first step is always to determine whether the substantive laws of the competing states actually differ. See, e.g., Ratti v. 9 Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 702 (Pa.Super. 2000); Thibodeau v. Comcast Corp., 912 A.2d 874 (Pa.Super. 2006). 50. If there is no relevant and true conflict, no further analysis is necessary and the substantive law of the forum state (i.e. Pennsylvania) is applied. Id. 51. If there is a relevant and true conflict, Pennsylvania employs a combination of the "government interest" and "significant relationship" approaches to conflict of laws analysis. See Kirschbaum v. WRFSB Assocs., 243 F.3d 145 (3d Cir. 2001) (applying Pennsylvania law). 52. Under this analysis, a court must evaluate the extent to which one state rather than another is able to demonstrate, by reason of its policies and its connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law. Id. 53. When conducting this analysis, it must be remembered that the a mere counting of the contacts is not what is desired; rather, the weight of each the contacts must be primarily considered. See Cipolla v. Shaposka, 439 Pa. 563 (1970). 54. Thus, contacts are measured on a qualitative rather than a quantitative basis. See Goodwin v. Townsend, 197 F.2d 970 (3d Cir. 1952). 55. The aforementioned framework applies to contract, as well as, tort actions. See Melville v. Am. Home Ins. Co., 584 F.2d 1306,1311-13 (3d Cir.1978). 56. Here, we have a true conflict between the relevant laws of Indiana and Pennsylvania. a. Pennsylvania Law: 57. In Pennsylvania, an employment relationship is generally considered to be "at will," allowing it to be terminated by either party at any time, for any reason or for no reason. See, e.g., Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 510 (1988). 10 58. However, an employee may defeat the "at will" presumption by establishing, among other things, that he gave his employer additional consideration by undergoing a substantial hardship other than the services for which he was retained to perform. See, e.g., Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa.Super. 606 (1991). 59. Under Pennsylvania law, "additional consideration" sufficient to rebut the presumption that all employment is "at will" may, under certain circumstances, consist of, among other things, an employee relinquishing employment and relocating his family to another state in order to accept a new employment position.2 See, e.g., Cashdollar, supra at 614 (citing Darlington v. General Elec., 350 Pa.Super. 183 (1986)). 60. In addition to the above, Pennsylvania has no applicable statute of frauds requiring that all employment contracts which cannot be performed within a year must be in writing. See Gallagher v. Medical Research Consultants, LLP, 2004 WL 2223312 (E.D.Pa.). b. Indiana Law: 61. Similar to Pennsylvania, in Indiana, an employment relationship is generally considered to be "at will," allowing it to be terminated by either party at any time, for any reason or for no reason. See Wior v. Anchor Industries, Inc., 669 N.E.2d 172, 175 (Ind. 1996). 62. Also similar to Pennsylvania, in Indiana, an employee may defeat the "at will" presumption by establishing, among other things, that he gave his employer additional consideration by undergoing a substantial hardship other than the services for which he was retained to perform. See Whiteco Industries, Inc. v. Kopani, 514 N.E.2d 840 (Ind.App. 1987). 63. However, unlike in Pennsylvania, under Indiana law, "additional consideration" sufficient to rebut the presumption that all employment is "at will" clearly may not consist of an 2 Nothing herein is constitute an admission that the facts of this case entitle Marsicano to recover any monies under his theory of Breach of Implied Contract, should Pennsylvania law be somehow deemed to apply. 11 employee relinquishing stable employment and relocating his family to another state in order to accept a new employment position. Id. at 843-844; see also Ohio Table Pad Co. v. Hogan, 424 N.E.2d 144 (Ind.App. 1981). 64. In Whiteco Industries, an Indiana case, it was held that the express, oral promise of employment for a definite period, coupled with an employee relinquishing other stable employment, moving to Indiana from New York, purchasing a home in Indiana, and performing his job duties above and beyond reasonable expectations, was insufficient, as a matter of law, to constitute the additional consideration necessary to remove the presumption of "at will" employment.3 Id. 65. In addition to the above, Indiana has a statute of frauds requiring that all employment contracts which cannot be performed within a year must be in writing. Id. C. Summary of the Conflicts' Analysis: 66. Now that a true conflict has been shown, it is necessary to determine which state has the most significant relationship and greatest government interest in Marsicano's Breach of Implied Contract claim. 67. Clearly, Indiana--the state where the entire employment contract was performed, as well as, the location of the subject matter of the contract--is the state with the most significant relationship to Marsicano's Breach of Implied Contract claim. See Restatement (Second) of Conflicts of Laws § 188 (citing factors to be considered). 68. Because the entire employment contract was performed in Indiana, Indiana clearly also has the greatest government interest in such claim. See Restatement (Second) of Conflicts of Laws § 6 (citing factors to be considered). 3 It should be noted that in this case there were a number of plaintiffs who each advanced similar arguments. For the sake of brevity, we focus on only one plaintiff's claims therein. 12 69. In addition, Pennsylvania courts faced with deciding which states' substantive laws to apply in analogous contexts--where an employee has moved to Pennsylvania from another state for employment purposes and subsequently files suit for wrongful discharge and/or breach of implied contract against a Pennsylvania employer--generally apply the law of the state where the employment contract was performed. See, e.g., News Printing Co., Inc. v. Roundy, et al., 597 A.2d 662 (Pa.Super. 1991)(applying Pennsylvania law, without discussion, to employment dispute involving employee who was discharged after moving family from Massachusetts to Pennsylvania to undertake new employment with defendant company in Pennsylvania); Cashdollar, supra (applying Pennsylvania law, without discussion, to employment dispute involving employee who was discharged after moving family from Virginia to Pennsylvania to undertake new employment with defendant company in Pennsylvania); see also Gallagher v. Medical Research Consultants, LLP., 2004 WL 2223312 (E.D.Pa.) (holding, after conducting conflicts analysis, that Texas law applied to claims of employee who remained Pennsylvania resident while working for a Texas company and performed work in both Texas and Pennsylvania). 70. Thus, Indiana law clearly applies. 2. Marsicano's Cause of Action for Breach of Implied Contract Must be Dismissed Pursuant to Indiana Law Which Holds that Merely Relinquishing Stable Employment and Moving One's Household to a New Location and/or State are Insufficient to Constitute Independent Consideration to Overcome Presumption that Employment is "At Will." 71. As set forth above, under Indiana law, "additional consideration" sufficient to rebut the presumption that all employment is "at will" clearly may not consist of an employee relinquishing stable employment and relocating his family to another state in order to accept a 13 new employment position. See Whiteco Industries, supra at 843-844; see also Ohio Table Pad Co. v. Hogan, 424 N.E.2d 144 (Ind.App. 1981). 72. Such actions are "considered as merely placing the employee in a position to accept new employment."4 See Whiteco Industries, supra at 844. 73. Additionally, even if Marsicano had performed his job "above and beyond all reasonable expectation", something Styline alleges he clearly did not do, his claim for Breach of Implied Contract must still fail because in Indiana it is held that the performance of one's job above and beyond reasonable expectation can never constitute independent consideration sufficient to remove the "at will" presumption, given that employers clearly do not "bargain[] for less than ... [an] employees' best efforts." Id. 74. Lastly, and as an additional matter, under Indiana law, the statute of frauds requires that all contracts which cannot be performed within one year must be in writing. Id. 75. Here, Marsicano claims that he was offered "a career position" (i. e. an employment contract, which presumably would be unable to be completed in less than one year). See Exhibit "A", ¶ 96. 76. Such a claim clearly triggers the application of the statute of frauds, which bars Marsicano's contract claim.5 Id. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection in the nature of a demur 4 Under Indiana law, substantial detriment or additional consideration has only been found in situations substantially similar to when an employee has signed a document releasing a claim for personal injuries or assigning a lease to the employer. See Ohio Table, supra at 146. 5 Additional Indiana case law surrounding the statute of frauds also provides another basis to bar Marsicano's claim for fraudulent inducement. Pursuant to Indiana law, no claim for fraud or fraudulent inducement can circumvent the application of that for an employment contract for in excess of one year to be enforceable it must be in writing. See, e.g., Mehling v. Dubois Co. Farm Bureau Cooperative Assoc., Inc., 601 N.E.2d 5 (Ind.App. 14 and DISMISSING Plaintiff, Fred Marsicano's cause of action for Breach of Implied Contract, with prejudice, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. D. FOURTH PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(3) AND/OR 1019(a) TO MARSICANO'S CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS. 77. Paragraphs 1 through 76 are incorporated by reference, as if set forth at length, herein. 1. By Failina to Plead Even a Single Fact Regarding: (a) When the Alleged Defamatory Communications Were Made; (b) to Whom Such Alleged Defamatory Communications Were Made; and (c) the Contents of Any Such Alleged Defamatory Communications, Marsicano's Cause of Action for Tortious Interference with Prospective Contractual Relations Lacks the Specificity Required by Pennsylvania Law and Must be Stricken and/or Dismissed. 78. Pennsylvania is a fact-pleading state. See Feingold v. Hendrzak, 15 A.3d 937 (Pa.Super. 2011). 79. Thus, a Complaint must not only give the defendant notice of what the plaintiffs claim is and the grounds upon which it rests, but it must also "formulate the issues by summarizing those facts essential to support the claim." Id. at 942. (citing cases) (emphasis added). 80. The trial court has broad discretion in determining the amount of detail that must be pled because this is not something capable of precise measurement. See Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978), 2 GOODRICH-AMRAM 2D § 1019(a):9 (database updated May 2010). 1992). Such an argument should be unnecessary, however, in light of the First Preliminary Objections set forth herein. 15 81. The question presented by a Preliminary Objection lodged pursuant to Pa.R.C.P. 1028(a)(3) is "whether the complaint is sufficiently clear to enable the defendant to prepare his defense or [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." See Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006) (citing Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973) (quoting 1 GOODRICH- AMRAM § 1017(b)-9)) (emphasis added). 82. A Preliminary Objection pursuant to Pa.R.C.P. 1028(a)(3) in the form of a motion to strike may be premised upon an alleged lack of specificity in pleading pursuant to Pa.R.C.P. 1019(a). See, e.g., Houck v. Barnes Kasson Hosp., 2010 WL 4357106 (Pa.Com.Pl.); Grudis v. Roaring Brook Tp., 2010 WL 5856069 (Lackawanna Co.). 83. Pa.R.C.P. 1019(a) states "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Id. 84. This rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. See Houck, supra (citing Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products Inc., 868 A.2d 624, 635 (Pa. Commw. 2005)). 85. In the instant case, Marsicano clearly fails to plead all the facts he must prove in order to recover on his cause of action for Tortious Interference with Prospective Contractual Relations. Id. 86. Additionally, Marsicano clearly fails to plead the facts sufficient for Styline to formulate a defense to this particular cause of action. 87. While Marsicano has alleged in blanket and non-specific fashion that Styline "made defamatory communications to prospective employers" about him after he was discharged 16 that prevented Marsicano from obtaining alternative employment, Marsicano clearly fails to provide even a single fact regarding: (a) when such alleged communications were made; (b) to whom such alleged communications were made; and (c) the contents of such alleged communications. 88. This is likely because Marsicano lacks any reasonable foundation, in fact, to support his allegations that Styline has somehow defamed him. 89. Without such foundation and without such factual allegations being set forth within the Complaint, Styline has clearly not been informed "with accuracy and completeness of the specific basis on which recovery is sought ...." See Rambo, supra. 90. Moreover, without such foundation and without such factual allegations being set forth within the Complaint, Styline will certainly be precluded from asserting, via preliminary objection, certain defenses that Styline may have to Marsicano's cause of action for Tortious Interference with Prospective Contractual Relations based upon its alleged defamatory statements. 91. If this occurs and Marsicano's bare-boned claim is permitted to survive, Styline will be forced to defend against discovery in the form of a fishing expedition by Marsicano in an effort to support his legally deficient claim for Tortious Interference with Prospective Contractual Relations. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection and DISMISSING/STRIKING, Plaintiff, Fred Marsicano's cause of action for Tortious Interference with Prospective Contractual Relations, without prejudice so that he may attempt to re-plead the 17 same with the specificity required by Pennsylvania law, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. E. FIFTH PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(2) AND/OR 1028(a)(4) TO MARSICANO'S DEMAND FOR PUNITIVE DAMAGES BASED UPON HIS CLAIM FOR BREACH OF IMPLIED CONTRACT.6 92. Paragraphs 1 through 91 are incorporated by reference, as if set forth at length, herein. 1. Choice of Law: 93. As set forth infra, herein, under either Pennsylvania or Indiana law, Marsicano's demands for punitive damages based upon his claim for Breach of Implied Contract must be dismissed. a. Pennsylvania Law Regarding Recovery of Punitive Damages in Contract Actions: 94. In Pennsylvania, punitive damages may not be awarded when the cause of action sounds purely in contract. See McShea v. City of Philadelphia, 606 Pa. 88, fn. 5 (2010). b. Indiana Law Regarding Recovery of Punitive Damages in Contract Actions: 95. In Indiana, punitive damages may not be awarded when the cause of action sounds purely in contract. See Erie Insurance Co. v. Hickman by Smith, 622 N.E.2d 515 (Ind. 1993). 6 It should be noted that the Court need not consider this Preliminary Objection if it dismisses Marsicano's cause of action for Breach of Implied Contract. However, in an overabundance of caution, the instant Preliminary Objection has been asserted in the alternative. 18 2. Regardless of Whether Pennsylvania or Indiana Law Applies, Marsicano's Demand For Punitive Damages Based Upon His Cause of Action for Breach of Implied Contract Must be Dismissed Because Marsicano is Not Permitted to Seek or Recover Punitive Damages For Purposes of Claims Sounding in Breach of Contract. 96. Regardless of whether Pennsylvania or Indiana law applies, and regardless of whether or not Marsicano's cause of action for Breach of Implied Contract is dismissed via these Preliminary Objections, Marsicano is not permitted to seek punitive damages for purposes of any contract claim, including his Breach of Implied Contract claim. See McShea, supra; Hickman, supra. 97. Accordingly, Marsicano's demand for punitive damages based upon Styline's alleged Breach of Implied Contract must be dismissed and/or stricken from the Complaint. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection and DISMISSING/STRIKING, Plaintiff, Fred Marsicano's demands for punitive damages based upon his cause of action for Breach of Implied Contract, with prejudice, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. F. SIXTH PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(4) TO MARSICANO'S CAUSE OF ACTION FOR WRONGFUL DISCHARGE. 98. Paragraphs 1 through 97 are incorporated by reference, as if set forth at length, herein. 1. Choice of Law: 99. As set forth infra, herein, while Indiana and Pennsylvania law differ somewhat on the cause of action for Wrongful Discharge, under either states' laws, Marsicano's cause of action for wrongful discharge fails to state a claim upon which relief may be granted and, therefore, must be dismissed. 19 2. Marsicano's Cause of Action for Wrongful Discharge Must be Dismissed Because Neither Pennsylvania or Indiana Law Allows an Employee to Bring a Cause of Action for Wrongful Discharge Based Upon Allegations that the Employee Was Discharged for Lodging Internal Complaints Regarding His Employer's Alleged Violation of Federal Safety Statutes and/or Regulations. 100. Generally there is no common law cause of action for the discharge of an at-will employee. See Highhouse v. Avery Transp., 660 A.2d 1374, 1376-77 (Pa. Super. Ct. 1995); Frampton v. Central Indiana Gas Co., 260 Ind. 249 (1973). 101. "Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy" or where a contractual or statutory provision is implicated. See Geary v. U.S. Steel Corp., 319 A.2d 174, 176 (Pa. 1974); Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989). 102. The employer is liable for wrongful discharge only where a well-recognized facet of public policy is at stake. See Highhouse, supra at 1377. 103. A violation of public policy has been recognized in only the most limited circumstances. See Geary, supra at 176. 104. The "public policy" must be rooted in policy of the Commonwealth of Pennsylvania (or Indiana), its constitution, court decisions, and statutes. See McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 288 (Pa. 2000). 105. The power of courts to declare pronouncements of public policies is sharply restricted and usually left to the legislature. See Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009). 106. Courts may only declare the public policies of the Commonwealth when "it is so obviously for or against public health, safety, morals or welfare that there is virtual unanimity of 20 opinion in regard to it...." See Weaver, supra at 569 (citing Mamlin v. Genoe, 17 A.2d 407, 409 (Pa. 1940)). 107. Pennsylvania courts do not recognize a cause of action for wrongful discharge based on the public interest, but rather by reference to the laws and legal precedent. See McLaughlin, supra at 288. 108. Here, Marsicano claims that he allegedly was terminated for lodging internal complaints to Styline representatives regarding the company's alleged violations of a "federal safety regulations" and/or his refusal to permit or condone such violations. See Exhibit "A", ¶ 84. 109. There are no cases in Indiana or Pennsylvania recognizing internal complaints about violations of safety concerns as the basis for a claim of wrongful discharge. 110. In fact, while there appears to be a dearth of case law in Indiana on the issue,7 the Pennsylvania Supreme Court has specifically recognized that an employee fails to state a claim for wrongful discharge where the employee complained internally of violations of federal statutes (or regulations) by their employer. See McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 289 (Pa. 2000) (involving alleged wrongful discharge of employee for employee lodging internal complaints of OSHA safety violations to employer); Cf. Frampton, supra (noting that wrongful discharge action was able to be sustained when employee was terminated for filing workers' compensation action with external body (i. e. workers' compensation board) against employer). 111. Because there are no allegations in the Complaint that Marsicano was discharged for reporting any alleged safety violations or violations of statutes or regulations to any 21 administrative and/or governing body outside of Styline itself, the Complaint is insufficient to allege a cause of action for wrongful discharge.8 See McLaughlin, supra. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection and DISMISSING, Plaintiff, Fred Marsicano's cause of action for Wrongful Discharge, with prejudice, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. G. SEVENTH PRELIMINARY OBJECTION PURSUANT TO PA.R.C.P. 1028(a)(2) AND/OR 1028(a)(4) TO MARSICANO'S DEMAND FOR PUNITIVE DAMAGES BASED UPON HIS CLAIMS SOUNDING IN TORT. 112. Paragraphs 1 through 111 are incorporated by reference, as if set forth at length, herein. 1. Choice of Law: 113. As set forth infra, herein, while the standards for punitive damages under Indiana and Pennsylvania law somewhat differ, under either standard, Marsicano's demands for punitive damages based upon his claims sounding in tort must be dismissed. a. Pennsylvania Law Regarding Recovery of Punitive Damages in Tort Actions: 114. In Pennsylvania, punitive damages may only be awarded for conduct that is "outrageous" because of the defendant's evil motive or his reckless indifference to the rights of others." See Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909 (Pa.Super. 2011). ' Styline has no uncovered any Indiana precedent addressing or allowing an employee to maintain an action for wrongful discharge when the employee alleges he was discharged for lodging internal complaints of alleged safety violations. 8 At the appropriate stage of litigation Styline will vigorously dispute that it violated and/or knowingly violated any state or federal statute or regulation. Thus, nothing herein may be construed as an admission in this regard. 22 115. As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct. Id. 116. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Id. 117. Additionally, this Court has stressed that, when assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital. Id. 118. The act, or the failure to act, must be intentional, reckless or malicious. Id. 119. Moreover, it is insufficient for plaintiff to merely state a legal conclusion averring that defendant's conduct was malicious, wanton, willful, reckless, oppressive, or outrageous; instead, what must be pled are the facts supporting such legal conclusions. See Schock v. T.J. Care Inc., 2004 WL 1570109 *2 (Pa.Com.Pl. 2004). b. Indiana Law Regarding Recovery of Punitive Damages in Tort Actions: 120. In Indiana, punitive damages may only be awarded if there is clear and convincing evidence that the defendant "acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing, in the sum will serve to punish the defendant and to deter it and others from like conduct in the future. See Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137-38 (Ind. 1988). 23 2. Regardless of Whether Pennsylvania or Indiana Law Applies, Assuming the Prior Preliminary Obiections are Granted, Any and All Demands for Punitive Damages in the Complaint Must be Dismissed Because Marsicano has Clearly Failed to Plead Any Conduct on Behalf of Styline Sufficient to Support Such Demands. 121. Assuming that Marsicano's Fraudulent Inducement, Breach of Implied Contract and Wrongful Discharge claims are Dismissed and Marsicano is forced to re-plead with the required specificity his claim for Tortious Interference with Prospective Contractual Relations, the Complaint is clearly insufficient to allege that Styline is guilty of either "outrageous" conduct, as such term is defined under Pennsylvania law, or "malice, fraud, gross negligence, or oppressiveness," as such terms are defined under Indiana law. 122. Therefore, any and all demands for punitive damages must be dismissed from the Complaint. WHEREFORE, Defendant, Styline Logistics respectfully requests that this Honorable Court enter an Order SUSTAINING the instant Preliminary Objection and DISMISSING/STRIKING, Plaintiff, Fred Marsicano's demands for punitive damages, with prejudice, and awarding Defendant, Styline Logistics such other relief as this Honorable Court deems reasonable and just. Respectfully submitted: FOX ROT HILD LLP An W. Bonekemper, Esquire (84313) son Vishio, Esquire (94102) 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422 (610) 397-6500 (610) 397-0450 (fax) Dated: October 19, 2011 24 FOX ROTHSCHILD LLP By: Andrew W. Bonekemper/Jason Vishio Identification No.: 84313/94102 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 (610) 397-6500 FRED MARSICANO, Plaintiff, V. Attorneys for Defendant, Styline Logistics IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION-LAW STYLINE LOGISTICS, CASE NO.: 10-2747 Defendant. CERTIFICATE OF SERVICE On October 19, 2011, the undersigned caused a copy of Defendant's Preliminary Objections to Plaintiff's Complaint to be served via U.S. First Class Mail, upon the following: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 J n Vishio, Esquire (94102) 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422 (610) 397-6500 (610) 397-0450 (fax) 25 .......... Supreme For Prothonotary Use Only: Docket No: County 10 -.R jq,7 The information collected on this form is used solely for court administration purposes. This form does not suDDlement or replace the filing and service ofpleadinizs or other papers as required by law or rules of court. S E C T I O N A Commencement of Action: © Complaint 0 Writ of Summons Petition Transfer from Another Jurisdiction ® Declaration of Taking Lead Plaintiff's Name: Lead Defendant's Name: Fred Marsicano Styline Logistics Are money damages requested? Yes No Dollar Amount Requested: © within arbitration limits . (check one) ®outside arbitration limits Is this a Class Action Suit? 0 Yes El No Is this an AMJAppeal? [3 Yes ® No Name of Plaintiff/Appellant's Attorney: Andrew W. Barbin, Esq. 0 Check here if you have no attorney (are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. S E C T I 0 N B TORT (do not include mass Tort) © Intentional M Malicious Prosecution 0 Motor Vehicle © Nuisance © Premises Liability ® Product Liability (does not include mass tort) © Slander/Libel/ Defamation 0 Other: CONTRACT (do not include Judgments) Buyer Plaintiff ® Debt Collection: Credit Card M Debt Collection: Other Employment Dispute: Discrimination Q Employment Dispute: Other Wrongful Discharge Fraudulent Inducement Other: CIVIL APPEALS Administrative Agencies Board of Assessment ® Board of Elections Dept. of Transportation Statutory Appeal: Other Zoning Board ® Other: NUSCELLANEOUS Common Law/Statutory Arbitration Declaratory Judgment Mandamus Non-Domestic Relations Restraining Order © Quo Warranto 13 Replevin M Other: Updated 1/I/2011 ANDREW W. BARBIN, ESQUIRE Attorney I.A. 43571 ANDREW W. BARwN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 717/506-4670 FRED MARSICANO, 119 Round Ridge Road Mechanicsburg, PA 17055 Plaintiff, V. STYLINE LOGISTICS, 1008 Styline Drive Huntingburg, IN 47542, Defendant TO: DEFENDANT NAMED HEREIN: Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA rv c m CO DOCKET NO. 10-2747 C/) -t =-n , i -<<D nc ;z . ?Q . c ?,. o-n `- ? A c rn 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 defense 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 importance to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle 17013 (717) 249-3166 TRUE COPY FROM RECORD In Testimony whered, I here unto set my hwW and the seal of said at Carlisle, This ? a ?p 1 ?. ? NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO OSI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA OLLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJOPARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle 17013 (717) 249-3166 Counsel for Plaintiff DATED: September 23, 2011 2 ANDREW W. BmwiN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 (717) 506-4670 ANDREW W. BAniN, EsQumE Attorney I.D. 43571 ANDREw W. Bmwiv, P.C. 5 Kacey Court, Suite 102 Mecbaniesburg, PA 17055 71715064670 Attorney for Plaintiff FRED MARSICANO, : IN THE COURT OF COMMON PLEAS 119 Round Ridge Road : CUMBERLAND COUNTY, PENNSYLVANIA Mechanicsburg, PA 17055 Plaintiff, V. DOCKET NO. 10-2747 STYLINE LOGISTICS, 1008 Styline Drive Jury Trial Demanded Huntingburg, IN 47542 Defendant COMPLAINT Plaintiff, by and through counsel, Andrew W. Barbin, P.C., hereby files this Complaint against Defendant, Styline Logistics and avers as follows: PARTIES 1. Plaintiff, Fred Marsicano, is an adult male citizen of Pennsylvania residing at 119 Round Ridge Road, Mechanicsburg, (Cumberland County) Pennsylvania 17055 (hereinafter "Plaintiff'). 2. Defendant, Styline Logistics is an Indiana corporation, with its principal place of business located at 1008 Styline Drive, Huntingburg, Indiana 47542 (hereinafter "Defendant"). JURISDICTION AND VENUE 3. At the time of the events at issue, Defendant owned and operated a national Distribution Center located at 1530 Bobali Drive, Suite B, Harrisburg, Pennsylvania 17104- 3223, Dauphin County, Pennsylvania. 4. Defendant regularly conducts business within Cumberland County, Pennsylvania. 5. Plaintiff resides in Cumberland County, Pennsylvania. 6. Therefore, jurisdiction and venue over all claims set forth in this Complaint is proper in the Court of Common Pleas of Cumberland County, Pennsylvania. FACTS COMMON TO ALL COUNTS 7. Prior to employment with Defendant, Plaintiff had worked as a Business Manager at United Parcel Service for over twenty (20) years. 8. Plaintiff began discussing potential employment with Defendant's Senior Vice President of Logistics and Purchasing, Ryan Menke (one of the family co-owners), in July, 2006. 9. Menke made no disclosures regarding any family conflicts in the closely held business. 10. Menke induced Plaintiff to leave stable remunerative employment based on general assurances of a career position with a stable family run business which would value his unique experience. 11. Menke and consultant Charlie Vollmer indicated that Vollmer would hold an interim Vice President position with Defendant and that Plaintiff's position would be elevated to a Vice President position when Vollmer left. 12. There were clear assurances that the position was intended as a career position and was not intended as probationary, 13. There were also clear assurances that additional support would be hired after Plaintiff had an opportunity to analyze and make recommendations regarding efficient allocations of responsibilities. 14. Previously, the position offered to Plaintiff had been performed by two supervisory personnel; it is believed their titles were Safety Director and Fleet Director. 2 15. On or about July 26, 2006, Plaintiff traveled to Defendant's Huntingburg, Indiana corporate office to finalize employment discussions with Menke and visit the area to look for potential housing. 16. After the visit, Plaintiff wrote to Menke on July 30, 2006, thanking Menke for the visit and outlining Plaintiffs compensation, fringe benefits, and possible relocation expenses. (Attached as Plaintiff Exhibit "A" hereto) 17. In the July 30, 2006 memo, Plaintiff specifically requested Thirteen Thousand Dollars ($13,000.00), three round trip tickets between Huntingburg and Harrisburg, and one week off to cover relocation logistics and expenses. 18. Menke responded to Plaintiff stating that Plaintiff would be awarded Thirteen Thousand Dollars ($13,000.00) to cover relocation expenses and Six Hundred Dollars ($600.00) a month for apartment housing expenses until Plaintiff could move into permanent housing. 19. Defendant personnel also arranged for a realtor to assist in house hunting. 20. Menke indicated that Defendant would provide Plaintiff with an additional week off in order to move and with One Thousand Five Hundred Dollars ($1,500.00) towards airfare to be used for Plaintiff to visit his family in Mechanicsburg until they moved to Huntingburg. 21. In addition, Defendant arranged to fly Plaintiff along with Plaintiffs wife and children to the Huntingburg, Indiana, area to check out schools and look for housing. 22. Plaintiff accepted the terms outlined by Menke in the July 30, 2006 memo on August 4, 2006 (see Exhibit A attached). 23. Plaintiff moved from his Mechanicsburg home to 4170 West Brookstone Court, Jasper, Indiana 47546, and began work as Director of Safety at Defendant's Huntingburg, Indiana office in September 2006. 3 24. In November 2006, Plaintiff committed to a purchase price of Four Hundred Thirty- Five Thousand Dollars ($435,000.00) for the Jasper, Indiana home. 25. Prior to accepting the position, Plaintiff was assured by Menke that he would be able to hire two additional individuals to perform essential subordinate functions. 26. This was confirmed in face-to-face discussions after Plaintiffs hiring and before the purchase of his Indiana home. 27. It is believed and averred that Defendant intended to materially alter the duties of Plaintiff's position after he purchased a home, from the outset, knowing that he would then be economically stuck and would not be in a position to refuse unreasonable demands and denial of promised assistance. 28. It had been agreed that Plaintiff would perform an initial assessment of specific needs before assistants would be hired. 29. By mid-November 2006, Plaintiff made it clear that administrative assistance, at minimum, was immediately required. 30. Initially, the request was deferred by an offer to share the use of administrative staff pending final assessment of needs, which never materialized in any meaningful way. 31. Thereafter, Plaintiff made continuing requests for administrative personnel from November 2006 until the time of his termination. 32. By November 29, 2006, Defendant was aware that Plaintiff had executed agreements for the purchase of a home in Jasper, Indiana. 33. Immediately, relations altered considerably. 4 34. On or about November 29, 2006, Plaintiff received a negative Performance Review from then Vice President Charlie Vollmer, in which Vollmer indicated that if Plaintiff did not feel he could succeed, he should not move his family to Indiana. 35. By that time, contracts for relocation had already been executed. 36. There was no reasonable basis for-the pre-textual criticisms raised. 37. On Plaintiff s birthday, December 21, 2006, Vollmer and Menke assigned additional unreasonable tasks to Plaintiff with no additional support. 38. Nonetheless, by extraordinary effort, each assigned task was completed by the February 28, 2007 deadline assigned. 39. In April 2007, Plaintiff was assigned still more responsibilities including procurement of all company vehicles, oversight of dispatch operations, driver management and oversight of diesel and body shop operations. 40. These duties had previously been shared among Vollmer, Menke, Jolene Davis and a contemporaneous hire, Bob Nenendall (who was terminated prior to Plaintiff). 41. Purchasing had also previously been by department, rather than consolidated. 42. The additional responsibilities resulted in an at least 50% increase in Plaintiffs responsibilities without a pay raise. 43. When Plaintiff inquired as to why he received more work without a pay raise, Menke stated that Plaintiff was "paid handsomely" for his duties and that since he started at such a high salary, he needed to be given more work. 44. It is believed and averred that Defendant fraudulently induced Plaintiff to take the position with intent to materially alter the burdens of his position after his mortgage effectively prevented him from complaining or leaving. 5 45. Pursuant to Plaintiff's continuing request for administrative assistance in the later summer, early fall of 2007, Vollmer agreed that Plaintiff could share an administrative employee one day a week. 46. However, whenever Plaintiff asked for a commitment on which day the administrative employee could be used, the administrative employee was always unavailable. 47. Plaintiff never actually received any material administrative support. 48. Despite adverse circumstances arising from unreasonable additional burdens and a lack of support, Plaintiff performed in an exemplary manner. 49. By December 2007, Rich Gilson, who had previously been an employee in Defendant's Harrisburg operations, was brought to Indiana to replace Mr. Vollmer. 50. Gilson gave Plaintiff a December 2007 performance evaluation which included unreasonable and unfounded criticisms; but the overall rating was good and Plaintiff was assured by Gilson that his position was not in jeopardy. 51. It is believed and averred that the evaluation was designed to keep Plaintiff on the defensive and make him less marketable to third parties. 52. In March 2008, while Plaintiff was on vacation, he received an email from Craftsman Construction (a related family company of Defendant) requesting expedited treatment for an oversized load permit. 53. Plaintiff replied that he was on vacation, did not believe the form was applicable, and that it should be reviewed by Jim Harris, the Vice President of Risk Management. 54. Plaintiff was not an employee of Craftsman Construction and his employer did not provide such certifications or documentation for Craftsman in its ordinary course of business. 6 55. The owner's son blew up orally to Plaintiff complaining about the turn-around time for the oversized load permit. 56. Harris eventually responded with a referral to counsel who ultimately confirmed that Plaintiff had been right and that an alternate process was required and the matter was then promptly addressed. 57. Notwithstanding the appropriate handling of the matter, Plaintiff was berated by John Menke (head of Craftsman) and Mr. Gilson for his refusal to proceed with the illegal and improper process, despite confirmation by corporate counsel that Plaintiffs actions were in fact proper. 58. Maintaining registrations for the vehicles of other companies was not part of Plaintiff s original job description. 59. There was no tracking system or similar report mechanism which would have allowed Plaintiff to be aware of the equipment inventory and registration status of utility trailers and similar equipment of the related companies. 60. Plaintiff was not an employee of the related company nor was there a services agreement between the companies of which he was aware. 61. Nonetheless, because they were related family owned companies and despite the unreasonable additional burdens already imposed, Plaintiff would facilitate such registrations on request because of his greater familiarity with the process. 62. During the same vacation as the above improper certification request, Plaintiff received an email indicating that a utility trailer had an expired registration. 63. Plaintiff replied that he would expedite renewed registration on return with the clear and unequivocal instruction that the unregistered trailer was not to be used until it was re-registered. 7 64. Despite this express instruction, the utility trailer was used, was subsequently stopped, and fines and penalties were incurred. 65. Despite having conducted himself entirely appropriately, Plaintiff was berated for this incident as well. 66. Plaintiff objected to various illegal and improper practices conducted by Defendant relating to driver safety and tax reporting. 67. In each case, Defendant declined to correct the practice and increased adverse comment and conduct toward Plaintiff, including but not limited to, intentionally using a fuel source which would not date and time stamp fuel purchases in order to facilitate known violations of road time restrictions, and fraudulent characterization of personal expenditures as business expenditures, e.g. remodeling of a Florida vacation home as improvements to one of the plants. 68. Because of Plaintiff's internal attempts to ensure regulatory and statutory compliance, Plaintiff was subjected to harassment and pre-textual criticism. 69. On or about April 1, 2008, Plaintiff was given a thirty (30) day notice. 70. Plaintiff was ultimately discharged from his position with Defendant in April, 2008. 71. Plaintiff's discharge was retaliation for his attempts to secure regulatory compliance and was without cause and based on false and pre-textual criticisms. 72. As a result of his discharge, Plaintiff moved back to Mechanicsburg, Pennsylvania, and subsequently filed for bankruptcy in 2009. 73. Plaintiff's Jasper, Indiana home was foreclosed upon and eventually sold at short sale on February 25, 2011 for Three Hundred Fifteen Thousand Dollars ($315,000.00). 74. Plaintiff suffered a loss of One Hundred Twenty Thousand Dollars ($120,000.00) on the short sale of his Indiana house as a result of the resale. 8 75. Plaintiff suffered and continues to suffer lost and diminished wages as the result of the fraudulent inducement and wrongful discharge in a currently unliquidated amount in excess of the local arbitration amount. Count I - Fraudulent Inducement 76. Paragraphs 1 through 75 are incorporated by reference, as if restated verbatim. 77. Defendant fraudulently induced Plaintiff to leave stable remunerative employment with United Parcel Service based on general assurances of a career position with Defendant which also included administrative assistance. 78. Defendant had no intentions of fulfilling its promise to Plaintiff in providing a career position with administrative assistance, but only made such promises to induce Plaintiff to move to Indiana where his duties would be unreasonable altered and Plaintiff would be in no position to complain or leave. 79. Plaintiff reasonably relied on Defendant's assurances of a career position with administrative assistance in purchasing a home and moving himself and his family from Mechanicsburg, Pennsylvania, to Huntingburg, Indiana. 80. As the direct and proximate result of the wrongful conduct Plaintiff suffered unliquidated compensatory damages, relocation expenses, attorney's fees. 81. Plaintiff seeks recovery of the unliquidated compensatory damages. 82. Defendant's actions were fraudulent, willful, intentional, malicious, and in reckless disregard for the rights of Plaintiff such that punitive damages should also be awarded. WHEREFORE, Plaintiff seeks judgment against Defendant for compensatory and punitive damages in an unliquidated amount in excess of the local arbitration amount, relocation expenses, attorney's fees, and such other relief as the court deems just. 9 Count II - Wrongful Discharge Public Policy 83. Paragraphs 1 through 82 are incorporated by reference, as if restated verbatim. 84. Irritation at Plaintiffs adherence to federal safety regulations and refusal to condone or permit continued violations was a substantial factor in the decision to terminate Plaintiff. 85. The discharge was contrary to public policy, wrongful, malicious and outrageous. 86. As the direct and proximate result of the wrongful conduct Plaintiff suffered unliquidated compensatory damages, relocation expenses, attorney's fees. 87. Plaintiff is seeking compensatory damages, relocation expenses, attorney's fees, and such other relief as the court deems just. 88. Defendant's actions were fraudulent, willful, intentional, malicious, and in reckless disregard for the rights of Plaintiff such that punitive damages should also be awarded. WHEREFORE, Plaintiff seeks judgment against defendant for compensatory and punitive damages in an unliquidated amount in excess of the local arbitration amount, relocation expenses, attorney's fees, and such other relief as the court deems just. Count III - Interference with Contractual Relations 89. Paragraphs 1 through 88 are incorporated by reference, as if restated verbatim. 90. Defendants discharged Plaintiff for false and pretextual reasons, and denied him a reference, causing self-publication of the defamatory fact of his termination to avoid an unexplained hole in his employment history. 91. On information and belief, Defendant made defamatory communications to prospective employers by falsely repeating directly or by implication in a false light, the false allegations that he had been discharged for deficiencies in performance. 10 92. As direct and proximate result of the interference, Plaintiff suffered an extended period of unemployment and under employment, as well as expense of maintaining multiple residences while accepting the only available employment at a location remote from his family and the home purchased for employment with Defendant. 93. Plaintiff is seeking compensatory damages, relocation expenses, attorney's fees, and such other relief as the court deems just. 94. Defendant's actions were fraudulent, willful, intentional, malicious, and in reckless disregard for the rights of Plaintiff such that punitive damages should also be awarded. WHEREFORE, Plaintiff seeks judgment against defendant for compensatory and punitive damages in an unliquidated amount in excess of the local arbitration amount, relocation expenses, attorney's fees, and such other relief as the court deems just. COUNT IV - BREACH OF IMPLIED CONTRACT 95. Paragraphs 1 through 94 are incorporated by reference, as if restated verbatim. 96. Plaintiff was a professional offered a career position at a remote location. 97. Defendant knew that the expenses and financial obligations inherent and disclosed regarding the relocation greatly exceeded allowances and were incurred based on express and implied assurances of a career position in accordance with the representations made as to duties assistance and career longevity with sufficient performance. 98. Under Pennsylvania law an employer is deemed to have made an implied commitment for employment of reasonable duration in proportion to the expense and obligations undertaken. 99. Plaintiff entered into an implied contract with Defendant to employ Plaintiff as Director of Safety for a reasonable period of time. 11 100. Defendant breached this implied contract by failing to employ Plaintiff for a reasonable amount of time and under reasonable conditions upon Plaintiffs relocation to Huntingburg, Indiana. 101. As the direct and proximate result of the wrongful conduct Plaintiff suffered unliquidated compensatory damages, relocation expenses, attorney's fees. 102. Plaintiff is seeking compensatory damages, relocation expenses, attorney's fees, and such other relief as the court deems just.. WHEREFORE, Plaintiff seeks judgment against Defendant for compensatory damages in an unliquidated amount in excess of the local arbitration amount, and relocation expenses, together with attorney's fees and such other relief as the court may,*eg1 drew W. Bazbin, "' u' Atty. . 43571 ANDREW . ARBIN, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 717-506-4670 Attorney for Plaintiff Date: September 23, 2011 12 AVDAM W. Bweuw, HsQussre AVemitr LD 43571 AM=W W. HARBtK M S xuw c*Krt; suite 102 1eeMaultebaig,PA 17055 717/506.4670 Attorney for Plaintiff Fuca hFAR8ICANO, : IN THE COURT OF COMMON PLEAS 119 Round Ridge Road : CUMBERLAND COUNTY, PENNSYLVANIA Mechanicsburg, PA 17055 . Plain#ifi, . `• DOCKET NO. 10-2747 SzYLir a, Loc ucs, . 1008 Styline Drive , Huntingburg, IN 47542, - Defendant VERIFICATION f, Fred Marsicano, do hereby state that the staternei is made in the foregoing complaint are true and convet based upon my knowledge information and belief I understand that false statements are made subject to penalties of 18 Pa. C.S. § 4904 relating to uuswom falsification to authorities. Fred Marsicano Dated: September 22, 2011 Memo Wizard Page 1 of 1 Fred Mamicano From: Ryan Menke [Rmenke@styline.com] Sent: Friday, August 04, 2006 6:29 PM To: Fred Marsicano Cc: Charlie Vollmer Subject: Memo Wizard Importance: High Fred, Please see attached response to your previous memo. I have spelled out everything we talked about on the phone. This should get us to that 99.5% mark! The only outstanding issue is the relocation allowance. I ran the net numbers and they appear to be undoable. That is why I noted that we will have to talk to Doug (CFO) and see if he has any tax tricks up his sleeve. I would hate to for us both to give up a combined total of almost $7,000 to Uncle Sam just to arrive at $13,000. Hopefully he will have a good solution for us come Monday. Take care and have a great weekend! Ryan <<FMarsicano compensationl.doc>> 8/17/2006 Date: 7/30/2006 To: Ryan Menke Fronua Fred Marsicano . RE Director of Fleet and Safety Job Offer Ryan, Thank you for the opportunity to visit with you and your outstanding company. Your hospitality and generosity were much appreciated by Stacie and me. I am excited about the opportusiity to work with you and embark on a new career. Because of the travel delay, I am remiss that we were unable to further discuss this opportunity in person. I want to summarize my expectations from the beginning of my job search to the offer you have presented me with I want to provide you with my current financial and benefit package so you have a clear understanding of the information I am using for comparison. When I decided to change carters, I had the following criteria established for the basis of my search: ? Accept a job that is challenging and offers opportunities for advancement. I think the position we are proposing and more importantly the potential film position of VP fulfills this requirement to its fullest. With our aggressive growth plans comes allot of challenges, not only in managing the current business, but also in designing the future models. Work for a company where my contributions are appreciated and I enjoy going to work. I hope that while you were here you got a pretty good feeling for our business environment and who we are as a company. I feel that we are a unique company on the verge of amazing things to come. A moderate compensation increase. On the surface it appears that our offer is a decrease in your salary plus bonus compensation, but when comparing it with cost of living figures it is actually about a 3.9% increase. The numbers to support this are found in the compensation section. WorkUfe balance where my family is happy. I believe you will find that although we are an aggressive company we value our home time. This isn't a sweatshop. We work hard during the 9-10 hours we are here and go home and enjoy our personal lives. We are flexible with kids' extra-curriailar schedules as well. My total compensation and benefits package: Annual Salary $83,000 For the current position of Fleet and Safety Director $100,000. We average about a 5% wage incase each year for top performers. Some have earned a bit more and some less. The other thing that must be considered is cost of living. In comparing 7130/2006 Confidential Mechanicsburg with Evansville at a salary of $113,000 the equivalent in Evansville is $97,883. So, in a salary comparison (including your UPS bonuses) you are essentially getting a moderate compensation increase of about 3.9%. This considers a salary of $100,000 plus a 33% share of an estimated 5% profit sharing bonus. Management Incentive Plan (IVIIP) - Bonus We offer a Christmas bonus and profit sharing bonus. Profit sharing has averaged between 5-90/6 and is on a 3 -year vesting schedule. o 2005 Award $30,350 o 2004 Award $29,935 o 10 year average $27,000 D 401K - 3% match 50% up to a2.5% match ? Medical coverage includes: medical, dental, vision, and LT disability (60016 of base pay). No vision, LT is equal and ST is free per schedule in packet Amy sent o Annual out ofpocket expense $300. Our deductibles are higher. ? Accidental Death & Dismemberment - $79,000 benefit-No cost. Basic Life Insurance- $79,000-No cost. 50% of base pay up to $50,000 (includes AD&D) o $175,000 additional coverage phis $100,000 spousal coverage - $190 Annual cost. D 5 weeks paid vacation. After 20 years I would expect that you have this kind of time available. Unfortunately this isn't something we can match. We will provide 3 weeks instead of the normal 2. This usually would occur after 5 years of service. D Relocation funds of $13,000 will be granted minus taxes. We will also provide tractor-trailer and driver to offset the transportation portion of the expenses for iniitia l and final moves. At this point, I can not answer whether we can increase this gross or noL Our CFO is not here until Monday to advise on what is the best route tax-wise in order to net out most efficiently for both of us. 9 We will bring your kids in town for a visit and cover two flights for Stacie (one with the kids and one for your home search). Your 401 K can be rolled into ours immediately, however contributions can't be made until after the ti-month probationary period. We will cover living expenses to include apartment and utilities up until Dec. 31 s`. (approx. $600 per month for 4 months = $2,400) ? Vacation will be available for 2-3 days in November for son's graduation and 2-3 days for Christmas. D We will be flexible with % days Fri and Mon to return home for long weekends on an intermittent basis. 7/30/2006 Confidential .t C1q I A PRAECIPE FOR LISTING CASE FOR ARGUMENT Fil~.E0-01•'FICE (Must be typewritten and submitted in triplicate) THE PROTHONOTARY TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter tITIT30 t I PM 3: 09 Argument Court.) Preliminary Objections of Defendant, Styline Logistics CAPTION OF CASE (entire caption must be stated in full) Fred Marsicano vs. Styline Logistics ENNSYLVAN A TY No 2010 2747 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): PRELIMINARY OBJECTIONS TO COMPLAINT 2. Identify all counsel who will argue cases: (a) for plaintiffs: Andrew W. Barbin, Esquire (Name and Address) 5 Kacey Court, Suite 102, Mechanicsburg, PA 17055 (b) for defendants: Jason Vishio, Esquire (Name and Address) Ten Sentry Parkway, Suite 200, Blue Bell, PA 19422 3. 1 will notify all parties in writing within two days that this case has been listed for argument. y C,5 4. Argument Court Date: 21 Z q/ ZO 12-- Jason Vishio, Esquire Date: l i / II Z'° I L Signat Pr' your name Attorney for Defendant Attorney for 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 14 days prior to argument. 3. The responding party shall file their brief 7 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. a ? sk4.-7 s ?d a ??- ? 333coao FOX ROTHSCHILD LLP By: Andrew W. Bonekemper/Jason Vishio Identification No.: 84313/94102 Ten Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 (610) 397-6500 FRED MARSICANO, Plaintiff V. STYLINE LOGISTICS, Defendant Attorneys for Defendant, Styline Logistics IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION-LAW CASE NO.: 10-2747 CERTIFICATE OF SERVICE I, Jason Vishio, Esquire, hereby certify that on this date I caused a true and correct copy of the foregoing Praecipe for Listing Case for Argument, to be served by First Class U.S. Mail, postage paid, on the following: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 FOX ROT LLP r Date: / 1// ?l Y Jaso ishio, Esquire/Atty #94102 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422 (610) 397-6500 FOX ROTHSCHILD LLP 1"i E D' - 0 F i' i C E By: Jason Vishio 0 H;E PR0TH0NOTk° Identification No.: 94102 2012 FEB 10 AM ! I' V 10 Sentry Parkway, Suite 200 P.O. Box 3001 CUMBERLAND COUNTY Blue Bell, PA 19422-3001 PENNSYLVAN]Aorneys for Defendant, Styline Logistics (610) 397-6500 (610) 397-0450 FRED MARSICANO, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, PA V. : CIVIL ACTION-LAW STYLINE LOGISTICS, CASE NO.: 10-2747 Defendant. WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance as counsel on behalf of the Defendant, Styline Logistics, in the above-captioned matter. FOX RO By: ishio HILD LLP Dated: dd. q ?=I-?:D-Of FI L rtC 0 THE PRO 11IONO IN1"-' 2012 FEB 10 AM 11: 03 CU PENN YLVAN A Y FOX ROTHSCHILD LLP By: Andrew W. Bonekemper, Esquire/W. Christian Moffitt, Esquire Identification No.: 84313/206770 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 Attorneys for Defendant, Styline Logistics (610) 397-6500 FRED MARSICANO, Plaintiff, V. STYLINE LOGISTICS, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA : CIVIL ACTION-LAW : CASE NO.: 10-2747 ENTRY OF APPEARANCE AS CO-COUNSEL TO THE PROTHONOTARY: Kindly enter my appearance as co-counsel on behalf of the Defendant, Styline Logistics, in the above-captioned matter. FOX ROTHSCHILD LLP By: d W. Christian M t, Esquire FRED MARSICANO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 10-2747 CIVIL ACTION STYLINE LOGISTICS, Defendant. JURY TRIAL DEMANDED IN RE: PRELIMIARY OBJECTIONS OF DEFENDANT STYLINE LOGISTICS BEFORE HESS, P.J., EBERT, J. and PECK, J. ORDER AND NOW, this Sday of April, 2012, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint, and after oral argument, the Preliminary Objections of the Defendant are OVERRULED. AND FURTHER, the parties being in agreement as to the withdrawal of Plaintiff's claim for punitive damages as to Count IV Breach of Implied Contract, the claim for punitive damages therein is hereby STRICKEN. BY THE COURT, z4 Hess, P.J. V Andrew W. Barbin, Esquire For the Plaintiff . , , Andrew W. Bonekemper, Esquire -, For the Defendant :; . ; Arn es out FRED MARSICANO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 10-2747 CIVIL ACTION STYLINE LOGISTICS, Defendant. JURY TRIAL DEMANDED IN RE: PRELIMIARY OBJECTIONS OF DEFENDANT STYLINE LOGISTICS BEFORE HESS, P.J., EBERT, J. and PECK, J. OPINION and ORDER Defendant Styline Logistics has filed the instant Preliminary Objections to Plaintiff's Complaint pursuant to Pa.R.Civ.P. 1028(a). (Preliminary Objections of Defendant, Styline Logistics to Plaintiff, Fred Marsicano's Civil Action Complaint, filed Oct. 20, 2011). Plaintiff's Complaint contains four counts: at Count I - Fraudulent Inducement, at Count II - Wrongful Discharge Public Policy, at Count III - Interference with Contractual Relations, and at Count IV - Breach of Implied Contract. (Complaint, filed Sept. 26, 2011). The Complaint has been preliminarily objected to in the form of multiple demurrers and by way of motions to strike for the failure to conform to law or rule of court and for reasons of insufficient specificity. (Preliminary Objections, filed Oct. 20, 2011). Plaintiffs Complaint may be summarized as follows. This civil case arises out of an employment dispute between Plaintiff and Defendant, Plaintiff having been employed by Defendant for approximately a year and a half. Plaintiff avers in his compliant that, prior to his employment with Defendant, he had worked as a business manager with UPS for more than twenty years. In July of 2006, Plaintiff began discussions with Defendant's Senior Vice President of Logistics and Purchasing, Ryan Menke, regarding the possibility of his obtaining employment with Defendant Styline Logistics. Plaintiff avers that "Menke induced Plaintiff to leave stable remunerative employment based on general assurances of a career position with a stable family run business which would value his unique experience." (Complaint, ¶ 10). Plaintiff alleges that "clear assurances" were made to him that his new position was intended to be a "career position" and was "not intended as probationary." (Complaint, ¶ 12). Moreover, Plaintiff alleges that he was assured upon his hiring that he would be provided with "additional support" to help him succeed in his new position. (Complaint, ¶ 13). Plaintiff avers that, on or about July 26, 2006, he travelled to Defendant's principal place of business, located in Huntingburg, Indiana, to finalize the employment discussions and to visit the area to locate potential housing. Subsequent to this meeting, various memos were exchanged between the parties, the details of compensation and benefits were agreed to, and Plaintiff formally moved to Indiana to begin work as the Director of Safety at Defendant's Huntingburg, Indiana office in September of 2006. Shortly thereafter, Defendant purchased a home and began his new career. Despite the seemingly positive start, Plaintiff avers that "Defendant intended to materially alter the duties of Plaintiffs position after he purchased a home, from the outset, knowing that he would then be economically stuck and would not be in a position to refuse unreasonable demands and denial of promised assistance." (Complaint, ¶ 27). Plaintiff avers that, by mid-November 2006, he had made multiple requests for the promised administrative assistance, yet such assistance was less than forthcoming. Additionally, Plaintiff avers that "[b]y November 29, 2006, Defendant was aware that Plaintiff had executed agreements for the purchase of a home in Jasper, Indiana. Immediately, relations altered considerably." (Complaint, ¶¶ 32-33). Plaintiff has alleged that on or about November 29, 2006, he received his 2 first of multiple negative "Performance Reviews" wherein various representatives of Defendant indicated that Plaintiff's performance was not up to par. Plaintiff avers that no reasonable basis existed for the "pre-textual criticisms" that were raised therein. (Complaint, ¶ 36). Plaintiff avers that as his time of employment continued, his workload was increased to unreasonable levels, all without a corresponding increase in pay. Plaintiff avers that "Defendant fraudulently induced Plaintiff to take the position with intent to materially alter the burdens of his position after his mortgage effectively prevented him from complaining or leaving." (Complaint, ¶ 44). Plaintiff alleges that Defendant continued to provide him with negative performance reviews in an attempt to "make him less marketable to third parties." (Complaint, ¶ 51). Additionally, Plaintiff avers that he was severely reprimanded for providing suggestions which would have kept Defendant's business in line with federal regulations. Specifically, Plaintiff avers that he was "berated" for suggesting that an unregistered trailer not be used until it was re-registered. (Complaint, ¶ 65). Plaintiff alleges that he "objected to various [other] illegal and improper practices conducted by Defendant relating to driver safety and tax reporting," and he avers that, in each instance, he was subjected to increased adverse commentary. (Complaint, ¶ 66). In the end, Plaintiff avers that the foregoing lead to his receipt, on April 1, 2008, of a thirty day notice whereby he would be terminated and discharged from his position. Plaintiff alleges that his discharge was "retaliation for his attempts to secure regulatory compliance and was without cause and based on false and pre-textual criticisms." (Complaint, ¶ 71). Plaintiff avers that, as a result of his termination, he was required to return to Mechanicsburg, Pennsylvania, and subsequently filed for bankruptcy in 2009. Moreover, Plaintiff avers that his Jasper, Indiana home was foreclosed upon and eventually sold at a short sale for a loss of 3 $120,000.00. Plaintiff avers that he has suffered and continues to suffer lost and diminished wages as a result of the "fraudulent inducement and wrongful discharge." (Complaint, ¶ 75). Lastly, Plaintiff has alleged that Defendant has since made defamatory communications to prospective employers by falsely repeating, directly or by implication, in a false light various "false allegations" that he had been discharged for deficiencies in performance. As a result of the above-described chain of events, Plaintiff has filed the underlying civil complaint wherein he has asserted, at Count I, a claim of Fraudulent Inducement, at Count II, a claim of Wrongful Discharge Public Policy, at Count III, a claim of Interference with Contractual Relations, and at Count IV, a claim of Breach of Implied Contract. Defendant subsequently filed the instant preliminary objections to Plaintiffs Complaint. Defendant has preliminarily objected to Plaintiffs Complaint in the form of various demurrers and also by way of motions to strike for the failure to conform to law or rule of court and for reasons of insufficient specificity. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including the following: (2) Failure of a pleading to conform to law or rule of court ...; (3) Insufficient specificity in a pleading; (4) Legal insufficiency of a pleading (demurrer). Pa.R.C.P. 1028(a)(2), (3), (4). The standard of review for preliminary objections in this Commonwealth is well settled. Preliminary objections are properly granted only when, "based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief." Mazur v. Trinity Area School Dist., 599 Pa. 232, 240-41, 961 A.2d 96, 4 101 (2008) (internal citations omitted). Furthermore, "[fJor the purpose of evaluating the legal sufficiency of the challenged pleading, the court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts." Mazur v. Trinity Area School Dist., 599 Pa. at 241. The trial court "need not accept as true conclusions of law, unwarranted inferences from fact, argumentative allegations, or expressions of opinion." Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995). Additionally, "the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is inapplicable of precise measurement." United Refrigerator Co. v. Appplebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963). The appellate court will only reverse a trial court's ruling on a preliminary objection when "there has been an error of law or abuse of discretion." Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 2007 Pa. Super. 327, ¶ 5, 936 A.2d 111, 113. At this stage, it is not for us to assess the level of difficulty on the part of Plaintiff to prove by a preponderance of the evidence the variety of allegations contained within his complaint. Instead, we are constrained to overrule the preliminary objections at this time as we are not prepared to say that, based on the facts pleaded, it is clear and free from doubt that Plaintiff will be unable to prove facts legally sufficient to establish a right to relief. In his complaint, Plaintiff has averred a variety of actions on the part of Defendant, including that Defendant fraudulently induced Plaintiff to accept new employment, move across the country and purchase a new residence, while at the same time setting him up for failure and financial hardship. The credibility of such assertions is for another day. We are limited to an examination of the facts averred in the complaint and must take them as true. By doing so, we are unable to 5 conclude that it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief. Lastly, the parties having agreed to the withdrawal of Plaintiff's claim for punitive damages as to Count IV Breach of Implied Contract, the claim for punitive damages therein will be stricken. nu nui? AND NOW, this day of April, 2012, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint, and after oral argument, the Preliminary Objections of the Defendant are OVERRULED. AND FURTHER, the parties being in agreement as to the withdrawal of Plaintiff's claim for punitive damages as to Count IV Breach of Implied Contract, the claim for punitive damages therein is hereby STRICKEN. BY THE COURT, ,(?, ?/ Kevin . Hess, P.J. Andrew W. Barbin, Esquire For the Plaintiff Andrew W. Bonekemper, Esquire For the Defendant rlm 6