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HomeMy WebLinkAbout11-2580} IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiff, Defendant File No.: 11-2580 Civil JURY TRIAL DEMANDED CIVIL ACTION - LAW AFFIDAVIT OF RETURN OF SERVICE BY MAIL On March 22, 2011, I mailed a true copy of the Complaint by certified mail, return Jason M. Weinstock, Esquire Supreme Court I.D. No. 69272 Email: j.weintock.L>verizon net IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Telephone: 717-238-1657 Facsimile: 717-238-6691 ?GIIHAR29 II: 4I CUMBERLAND COUNTY PENNSYLVANIA Attorneys for: PLAINTIFFS LAURA J. KROUT, vs. FRY COMMUNICATIONS, INC., receipt requested, to Defendant, Fry Communication, 800 West Church Road, Mechanicsburg, Pennsylvania, 17055. Peggy Green signed the return receipt upon delivery and the receipt, attached hereto as Exhibit "A", was returned by the post office. I make these statements pursuant to 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. By: ?-'/Vt'. as n M. Weinstock, Esquire H. WEINSTOCK, P.C. 0 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 CERTIFIED MAIL R (Domestic Mail Only; No Insuran Q' M 1 ° M Postage $ ru ° Certified Fee c O 6 C3 Return Receipt Fee (Endorsement Required) 3 V Postmark rk ° -D a Restricted Delivery Fee (Endorsement Required) 3/22/11 rI Total Postage & Fees $ VI ° Sent To ° -_--.Fr- _Commu.n..isations. ----- I Street, opt No.; -------------------- or PO Box No Church Road City State, NA Mechanicsburg, ------""' PA 17055 ¦ Complete items 1, 2, and 3. Also complete Item 4 H Restricted Ddkwy is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the hack of the mailpiece or on the front H space permits. ' 1. Article Addressed to: Fry Communications 800 W. Church Rd. Mechanicsburg, PA 17055 A. qjn" tdeavoy ? A®ent & Servios Type Certilled Mail 13 6a Re*t&W 103 ? Retum andise 13 Insured Mail E3 C.O.D. 4 Ruled ? Addressee re .3, C. Date of Delivery dMferent 1rt7m Item 11 ? es If YES, enter delivery address No Deiivary4 fCXtm F* ? Yes 2. Article Number 7005 1160 0002 3039 1901 (1'?armiler Avm s4 PS Form 3811, Feibnwy 2w4 Domealic Rashu"M FlraoNpt 102595-o2-M-1640 EXHIBIT `6A" 11 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA LAURA J. KROUT Plaintiff, I I I V. I FRY COMMUNCIATIONS, INC. Defendant. 7) r., NO 11-2580 . CIVIL TERM r- --- ?t-,; ,? e z - ANSWER AND NEW MATTER Defendant Fry Communications, Inc. ("Fry"), by and through its undersigned attorneys, answers Plaintiff's complaint and alleges new matter, as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Denied as a conclusion of law. 4. Denied as a conclusion of law. 5. Admitted in part. Plaintiff was assigned temporarily as a Saddle Operator on or about July 30, 2008, and was assigned permanently as a Saddle Operator on or about September 10, 2008. Fry is unable to admit or deny the vague allegation concerning "incentives" and therefore denies that allegation. Fry admits that, addition to Plaintiff's base wages, Plaintiff had opportunities to earn additional "piece rate" wages for exceeding certain production volumes, subject to Fry's Zero Tolerance Policy ("ZTP") relating to production quality. 6. Denied as stated. Fry admits that it is a commercial printer in the business of information distribution via print, direct mail, and digital delivery. The allegations of this paragraph refer to the contents of a website, which speaks for themselves. 7. Denied as stated. Fry admits that Fry adopted the ZTP in May 2007. A copy of the terms of the ZTP as adopted in May 2007 is attached hereto as "Exhibit 1." The ZTP was revised effective December 9, 2008. A copy of the terms of the ZTP as revised effective December 9, 2008 is attached hereto as "Exhibit 2." The terms of the ZTP as adopted and revised speak for themselves. 8. Denied. 9. Admitted in part. It is specifically denied that the customer complaint was "purported." 10. Fry admits only that Fry provided Plaintiff with a written ZTP Violation Notification on or about March 29, 2010, and that Plaintiff refused to sign the ZTP Violation Notification. The remaining allegations of this paragraph are denied. 11. Denied. To the contrary, several evaluations of Plaintiff reflect customer complaints, quality control problems, and failures to follow standard procedures. 12. Fry admits that Plaintiff received the following deductions for violations of the ZTP (collectively, the "ZTP Deductions"): (a) $80.00 deducted from the Plaintiff s check dated October 22, 2008, for the pay period ending October 17, 2008; (b) $80.00 deducted from the Plaintiff's check dated November 5, 2008, for the pay period ending October 31, 2008; (c) $80.00 deducted from the Plaintiff's check dated March 10, 2010, for the pay period ending March 5, 2010; and, $80.00 deducted from the Plaintiff's check dated December 15, 2010, for the pay period ending December 10, 2010. Fry also admits that Fry maintains an internal record of any piece rate wages that Plaintiff earned and any ZTP Deductions therefrom, and that there is no specific entry on Plaintiff's 2 paycheck indicating separately the amounts of Plaintiff's piece rate wages or any ZTP Deductions therefrom. The remaining allegations of this paragraph are specifically denied. 13. Denied. COUNTI 14. Fry incorporates paragraphs 1-13 above. 15. Denied as a conclusion of law. 16. Denied as a conclusion of law. 17. Denied as a conclusion of law. 18. Denied as a conclusion of law. 19. Denied as a conclusion of law. Fry specifically denies that ZTP Deductions represent wages due and owing to Plaintiff. Fry specifically denies that it acted with a lack of good faith. 20. Denied as a conclusion of law. NEW MATTER 21. Fry incorporates paragraphs 1-20 above. 22. The "Saddle Operator" position at Fry is located in the bindery. Saddle Operators typically are assigned to three-person crews to operate the high-speed bindery equipment that Fry uses to bind printed materials into books, magazines, catalogs, newspapers, and other print formats according to specifications from Fry's customers. 23. A Saddle Operator's wages are based on two components. First, each Saddle Operator receives a "base rate." Second, Saddle Operators may earn "piece rate" over and above their base rate for exceeding certain production volumes. The piece rate 3 earnings are shared evenly among the bindery crew members who worked on the qualifying job. 24. Although Fry offers piece rate opportunities to Saddle Operators as an incentive to increase production volumes, Fry also places great importance on developing and maintaining a reputation for high quality printing services. Mistakes and errors in binding generate waste and customer complaints, costing Fry in terms of money, customer goodwill, and its reputation for quality. 25. Accordingly, Fry adopted the ZTP in May 2007 in order to encourage bindery workers to avoid mistakes and timely fix binding errors in order to prevent costly waste and protect Fry's reputation for quality. As explained in the ZTP, "The company wants to make it unmistakably clear that `if in doubt, check it out and make it right.' Although this might increase the time it takes to get a job completed, it has to be done." 26. Per the ZTP, if certain binding errors occur, "and there is clear evidence that the crew failed to follow instructions or standard operating procedures, which thus triggers an external or internal Customer Complaint, reprint, shortage, or additional cost, [it] will result in the assessment of an $80.00 penalty from every member of the crew." 27. The ZTP has two built-in exceptions. First, "[i]f a crew member earned less than $200.00 in bindery piece rate in four previous calendar weeks, the penalty will be proportionally calculated (example: he/she earned $100.00 total in the previous four weeks in bindery piece rate, the penalty would be $40.00, not $80.00)." Second, [t]he penalty may be decreased so no one's wage falls below the legal minimum for the pay week." Thus, ZTP Violations do not affect an employee's base rate wages, and only result in deductions if the employee earned sufficient piece rate wages during the 4 previous four calendar weeks. 28. Plaintiff was informed about piece rate opportunities and the terms of the ZTP at or about the time she became a Saddle Operator in 2008. The ZTP also was discussed during bindery crew meetings conducted by Plaintiff's then-supervisor. Nonetheless, Plaintiff, who at all relevant times was an at-will employee of Fry, voluntarily accepted and continued her employment as a Saddle Operator subject to those terms and conditions. 29. Indeed, Plaintiff routinely took advantage of the piece rate opportunities to which the ZTP is tied, accepting an additional $27,411.02 in piece rate wages over and above her base rate pay between 2008 and 2010. From that amount, a total of only $320.00 was deducted (4 deductions of $80.00 each) due to ZTP Violations assessed against Plaintiff and the other crew members who worked on the affected jobs. 30. After Plaintiff incurred her first ZTP Violation, Plaintiff's then-department manager met with Plaintiff to explain the violation to Plaintiff and confirm that Plaintiff understood the terms of the ZTP. Following this meeting Plaintiff, voluntarily continued to work as a Saddle Operator at Fry, earning piece rate wages subject to the terms and conditions of the ZTP. 31. Plaintiff received notice of each ZTP Violation that was imposed on her and the other members of her bindery crew. 32. The Complaint fails to state a claim upon which relief can be granted. 33. The Complaint is barred by the doctrine of waiver. 34. The Complaint is barred by Plaintiff's consent to, and violations of, the Zero Tolerance Policy. 5 35. The Complaint is barred in whole or in part by Plaintiff's failure to mitigate damages. 36. The Complaint is barred in whole or in part by Plaintiff's failure to satisfy conditions precedent. WHEREFORE, Defendant Fry Communications, Inc. requests judgment in its favor and against Plaintiff. 4er ft a. IYDN o17766) <rswift@kohnswift.com> Craig W. Hillwig (Pa. ID No. 70107) <chillwig@kohnswift.com> KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Attorneys for Defendant Fry Communications, Inc. 6 EXHIBIT I VERIFICATION I, Frank E. Hopkins, Jr., an authorized agent of Fry Communications, Inc., affirm that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of his knowledge, information and belief. I frilly understand that false statements are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsifications to authorities. Dated: April ? ?, 2011 400SZ6 VJOOQ Frank E. Hopkins, Jr. Human Resources Manager 267561 May 1,2007 DEAR BINDERY CREW MEMBER: Our company prospers because of the quality of the work produced. We are not the largest printer nor the lowest priced. But we are among the best. Thank you for your great work. Because this reputation is so vital, the company continues to invest in the best technology to enable us to produce the highest quality. Nothing undermines this reputation more than a customer picking up a book and finding major flaws in our craftsmanhip. These problems generally are the result of carelessness, not natural machine variability. The bindery crews have to carefully set up a job to match instructions and ensure that the product is on size, square, no marking, and assembled correctly. Unfortunately this does not always happen. The company wants to make it unmistakably clear that "if in doubt, check it out and make it right". Although this might increase the time it takes to get a job completed, it has to be done. The company has adopted a new policy, effective May 15`h 2007, for crews who do not follow this rule and, as a consequence, produce work which generates a complaint or rework, as stated below: ZERO TOLERANCE FOR Failed checkout, Failed MR, Misload, Poor Customer Samples Examples of a Failed Checkout but not limited to: Publication not assembled according to the jacket IJ not set up correctly Exception: If failed checkout is detected by the crew who set it up before 1000 bad copies are produced, the error will not be subject to ZERO TOLERANCE rules. (Removed) Examples of a Failed MR Any #4 class defect- ie out of square 1/8" or more, Not on size by 1/8" or more, severe marking from binder with no attempt to correct and get supervisor approval Job call for Hard Folding in-line- not completed 1000 copy or more misload that is not detected by the crew who ran it. If the crew catchers their own misload, or if the misload is caught by someone else and is less than 1000 copies, than no penalty Poor Customer Samples Obvious defect in customer samples where careful inspection was called for and was not completed. If one of the problems listed above occures, and which thus triggers an external or internal Customer Complaint, or might reasonably trigger a Customer Complaint if seen by the customer, a reprint, or a shortage, will result in the assessment of an $80.00 penalty from every member of the crew. Exceptions to the above rule are: A If a crew member earned less than $200.00 in bindery piece rate in four previous calendar weeks, the penalty will be proportionally calculated (example: he/she earned $100.00 total in the previous four weeks in web press piece rate, the penalty would be $40.00, not $80.00). B. The penalty may be decreased so no one's wage falls below the legal minimum for the pay week. EXHIBIT 2 May 1,2007 DEAR BINDERY CREW MEMBER: Our company prospers because of the quality of the work produced. We are not the largest printer nor the lowest priced. But we are among the best. Thank you for your great work. Because this reputation is so vital, the company continues to invest in the best technology to enable us to produce the highest quality. Nothing undermines this reputation more than a customer picking up a book and finding major flaws in our craftsmanship does. These problems generally are the result of carelessness, not natural machine variability. The bindery crews have to carefully set up a job to match instructions and ensure that the product is on size, square, no marking, and assembled correctly. Unfortunately this does not always happen. The company wants to make it unmistakably clear that "if in doubt, check it out and make it right". Although this might increase the time it takes to get a job completed, it has to be done. The company has adopted a new policy, effective May 15'' 2007 Crews who do not follow this rule, and where there is clear evidence that they failed to follow instructions or standard operating procedures and, as a consequence produce work which generates a complaint rework or additional cost to the company, as stated below: ZERO TOLERANCE FOR Failed checkout, Failed MR, Misload, Poor Customer Samples, OR OTHER DEFECTIVE WORK Examples of a Failed Checkout but not limited to: Publication not assembled according to the jacket IJ not set up correctly Examples of a Failed MR Any #4 class defect- i.e. out of square 1/8" or more, Not on size by 1/8" or more, severe marking from binder with no attempt to correct and get supervisor approval Job call for Hard Folding in-line- not completed 1000 copy or more misload that is not detected by the crew who ran it. If the crew catches their own misload, or if the misload is caught by someone else and is less than 1000 copies, then no penalty Poor Customer Samples Obvious defect in customer samples where careful inspection was called for and was not completed. If one of the problems listed above occurs and there is clear evidence that the crew failed to follow instructions or standard operating procedures which thus triggers an external or internal Customer Complaint, reprint, shortage or additional cost will result in the assessment of an $80.00 enal from every member of the crew. Exceptions to the above rule are: A If a crew member earned less than $200.00 in bindery piece rate in four previous calendar weeks, the penalty will be proportionally calculated (example: he/she earned $100.00 total in the previous four weeks in bindery piece rate, the penalty would be $40.00, not $80.00). B. The penalty may be decreased so no one's wage falls below the legal minimum for the pay week. Revised 12/09/08 CERTIFICATE OF SERVICE I, Craig W. Hillwig, hereby certify that a true and correct copy of the foregoing Answer and New Matter was served upon the following counsel by First Class mail and by e-mail: Jason M. Weinstock IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Email: j.weinstock@verizon.net Attorney for Plaintiff Dated: April 29, 2011 LAURA J. KROUT, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. No.: 11-2580 Civil FRY COMMUNICATIONS, INC., Defendant, : JURY TRIAL DEMANDED CIVIL ACTION — LAW STATEMENT OF INTENTION TO PROCEED To the Court: Plaintiff, Laura Krout intends to proceed with the above captioned matter. Date: 9/19/2014 Respectfully Submitted, Jason M. Weinstock, Esquire IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone (717) 238-1657 < CD cp —< N M. WEINSTOCK ney I.D. No.: 69272 A• orney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 19th day of September, 2014, I, Jason M. Weinstock, Esquire, attorney for Plaintiff, hereby certify that I served the within STATEMENT OF INTENTION TO PROCEED this day by depositing the same in the United States mail, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By First Class Mail: Robert A. Swift, Esquire Craig W. Hil!wig, Esquire Kohn, Swift & Graf, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 14AA, JASON M. WEINSTOCK