HomeMy WebLinkAbout04-4609PADDEN, GUERRINI & IN THE COURT OF COMMON PLEAS OF
ASSOCIATES, P.C., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : NO. 2004
KELLY M. McNEW,
Defendant CIVIL ACTION - LAW
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without you and a judgment may
be entered against you by the Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
717-249-3166 or 1-800-990-9108
PADDEN, GUERRINI &
ASSOCIATES, P.C.,
Plaintiff
V.
KELLY M. McNEW,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
2004
CIVIL ACTION - LAW
NOTICIA
Le ban demandado a usted en ]a corte. Si usted quiere defenderse de estas
demandas expuestas en ]as paginas siguientes, usted tiene viente (20) dias de plazo a] partir de la
fecba de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona
o per 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 used sin previo aviso o notification y por cualquier
queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus
propiedades o otros derechos importantes Para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO
TIENCE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
717-249-3166 or 1-800-990-9108
PADDEN, GUERRINI &
ASSOCIATES, P.C.,
Plaintiff
V.
KELLY M. McNEW,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
2004
CIVIL ACTION - LAW
COMPLAINT
AND NOW, comes the Plaintiff, Padden, Guerrini & Associates, P.C., by and through its
attorney, Richard L. Macey, and sets forth the following:
1. Plaintiff, Padden, Guerrini & Associates, P.C., is a Pennsylvania professional
corporation with offices at 3425 Simpson Ferry Road, Camp Hill, Cumberland County,
Pennsylvania. It conducts its accounting practice and related business services at that address.
2. Defendant, Kelly M. McNew, is an adult individual residing at 35 Junction Road,
Dillsburg, York County, Pennsylvania 17019.
3. On June 26, 2002, Plaintiff and Defendant entered into an Employment
Agreement ("Agreement'), by which Plaintiff agreed to employ Defendant and Defendant
accepted employment with Defendant under the terms and conditions of the Agreement. The
Agreement is attached hereto as Exhibit "A".
4. The Agreement was entered into and signed at Plaintiff's offices, 3425 Simpson
Ferry Road, Camp Hill, Cumberland County, Pennsylvania. Defendant worked for Plaintiff at
that address.
5. Defendant remained an employee of Plaintiff until July 16, 2004, when she
resigned effective that date. Copy of her resignation is attached hereto as Exhibit "B".
6. Paragraph 7 of the Agreement provides that if Defendant, after termination of her
employment with Plaintiff, undertakes to perform accounting or related services for any client of
Plaintiff who was a client at the time of her employment termination, she shall pay to Plaintiff,
thirty (30) days after she begins to perform services for such client, one hundred (100%) percent
of the average gross billings to the client in Plaintiff s three (3) previous fiscal years or, if the
client has been with Plaintiff for less than three (3) years, the average determined by the number
of years the client has been with Plaintiff.
7. At the time of termination of Defendant's employment with Plaintiff,
Appalachian Rehabilitation was a client of Plaintiff to which it provided Medicare Part B billing
services. As an employee of Plaintiff, Defendant performed services for the client. Appalachian
Rehabilitation terminated Plaintiff as a provider of such services for it on July 22, 2004. A copy
of its letter of that date so doing is attached hereto as Exhibit "C".
8. Upon termination of Defendant's employment, Defendant undertook to provide
services to Appalachian Rehabilitation, serving as their biller for services provided under
Medicare Part B.
9. As a result of the aforesaid undertaking and actions by Defendant, Defendant is
liable to Plaintiff in the amount of Eighty-Four Thousand Six Hundred Five and 041100
($84,605.04) Dollars based on the monthly average billing of Two Thousand Three Hundred
Fifty and 14/100 ($2,350.14) to Appalachian Rehabilitation for the tbirty-one (31) months it was
a client of Plaintiff as set forth on the Billing Summary attached hereto as Exhibit "D".
WHEREFORE, Plaintiff demands judgment against the Plaintiff in the amount of Eighty-
Four Thousand Six Hundred Five and 04/100 ($84,605.04) Dollars, plus interest from August 16,
2004 and costs.
Rieftfirdt. Placey, Esquilvs
Attorney for Plaintiff
PLACEY & WRIGHT
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 236-9577
Supreme Court I.D. No. 07232
Dated: September 15, 2004
VERIFICATION
I, H. David Padden, President of Padden, Guerrini & Associates, P.C., being authorized
to do so, do hereby verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa. C.5.4904, relating to unworn falsification tc
authorities.
H. David Padden
Dated: "t '\ b '0 L?
?
EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into as of the 26th day of June, 2002, by and between PADDEN,
GUERRINI & ASSOCIATES, P. C., Camp Hill, Pennsylvania, ("Corporation"), and KELLY M. McNEW of
Dillsburg Pennsylvania ("Employee").
BACKGROUND OF THIS AGREEMENT
Employee wishes to be employed by Corporation. The Corporation desires to hire employee and to
assign to her certain client responsibility provided Employee enters into this Agreement setting forth the terms
and conditions of her employment and agrees to the restrictions on her with respect to Corporation's clients in
the event of termination of Employee's employment with Corporation. Employee is willing to agree to the
same.
NOW, THEREFORE, in consideration of the foregoing, the promises and mutual covenants herein
contained and intending to be legally bound, the parties hereto agree as follows:
1. Employment: Corporation shall employ Employee at the compensation to which the parties
have agreed to render professional accounting services as determined by the Board of Directors of the
Corporation in the manner and to the extent permitted by the Pennsylvania Act of Assembly under which
Corporation was incorporated and the applicable canons of professional ethics as from time to time are in
force. Employee shall, to a reasonable extent, attend professional conventions, seminars and participate in
professional societies and shall do all things reasonably desirable to maintain and improve Employee's
professional skills.
2. Compensation: Employee, as compensation for all services rendered to Corporation under
this Agreement, shall receive such salary as shall be determined from time to time by the Board of Directors of
Corporation and shall be provided with such additional benefits as Corporation provides for its other
professional employees. MONISM, -
14 V
z
3. Loyalty: Employee shall devote Employee's full time and best efforts to the performance of
employment under this Agreement. During the term of this Agreement, Employee shall not, at any time,
either directly or indirectly, engage in the practice of accounting except under and pursuant to this Agreement,
and all fees or other income attributable to Employee's professional services during the term of this Agreement
shall belong to and be the property of Corporation.
4. Standards: Employee shall perform the duties under this Agreement in accordance with
such standards of professional conduct, ethics and practice as may from time to time be applicable during the
term of employment hereunder.
5. Vacations: At such reasonable times as the Board of Directors shall, in its discretion,
determine, Employee shall be entitled, without loss of pay, to absent himself voluntarily from the performance
of Employee's employment under this Agreement, all of such voluntary absences being vacation time.
Allowable vacation time shall be as set forth in Corporation's staff manual.
6. Termination: This Agreement may be terminated by either party upon prior notice and shall
terminate immediately should Employee's license to practice accounting as a certified public accountant be
revoked or lapse.
7. Company's Clients on Termination of Employment: The parties hereto acknowledge that
the Corporation would be damaged should the Employee leave the employment of the Corporation and
compete with the Corporation; therefore, Employee agrees that if her employment with the Corporation is
terminated for any reason and if she thereafter undertakes to perform accounting or related services for any
client of Corporation who was a client of Corporation at the time of Employee's termination of employment
with Corporation, whether the performance of such accounting and related services are performed by
Employee or by an entity by which Employee is employed, or in which Employee has an interest, or in which
Employee is an officer, director, partner or joint venturer, Employee shall pay to the Corporation one hundred
(100%) percent of the average annual gross billings to said client by Corporation in the Corporation's three (3)
fiscal years previous to such Employee's termination of employment. It ,ie client has been with the
Corporation for less than three (3) years, the average shall be determined by the number of years the client has
been with the Corporation. The payment shall be due and payable thirty (30) days after a client of Corporation
becomes a client of Employee. The provisions of this paragraph shall not apply to any client who becomes a
client of Employee more than three (3) years after the termination of Employee's employment with the
Corporation.
8. No AssiQmnents: This Agreement is personal to each of the parties hereto and neither party
may assign nor delegate any of its rights or obligations hereunder without first obtaining the written consent of
the other party.
9. Amendments: No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties except as hereinafter provided.
10. Applicable Law: This Agreement shall be governed in all respects whether as to its
validity, construction, capacity, performance or otherwise by the laws of the Commonwealth of Pennsylvania.
11. Headings: The paragraph headings used in this Agreement are for convenience and shall
not affect or be used in connection with the interpretation of it.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and date first
above stated.
ATTEST:
Secretary
PADDEN, GUERRIM & ASSOCIATES, P.C.
President
Witness KELLY MhMN W
July 16, 2004
Please be advised that as of today, I am resigning from Padden, Guerrini & Associates. Enclosed
you will find my two office keys. Please mail my expense check and paycheck to my home.
Sorry for any inconveniences which this may have caused.
Sincerely,
Kelly M. McNew
07/21/2004 22:06 717369-8 LAWANNA
/KP APPALACHIAN REHABILITATION
OCCUPATIONAL TXUtAPY • PHYSIM TII.u(APY • SM; TXMAPY • MASSAGE TMU"
PAGE 01/01
July 22, 2004
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Dear Padden, Guerrini and Associates,
Please be advised that effective immediately; Appalachian Rehabilitation
would like to discontinue billing services provided by your firm,
I plan to visit your office Friday July 30, 2004 to pick up all of our 2004 files. If
you should have any questions please contact me at:
Lawama Myers, MT/Orector of Q.A.
(717 ) 729-1147
Sincerely,
wezw If
Lawanna Myers, MT
Director of Q.A.
Appalachian Rehabilitation
Billing Summary
Billing Date Amount Billed
2004
:
July 1, 2004
June 1, 2004 2,063.47
May 1, 2004 2,406.53
April 1, 2004 2,113.36
March 1, 2004 3,202.87
February 1, 2004 1,982.50
January 1, 2004 2.993.26
2,143.78
2003
:
December 1, 2003
November 1, 2003 2 171 07
October 1, 2003 3,406.50
September 1, 2003 2,385.49
August 1, 2003 2,543.79
July 1, 2003 2,626.73
June 1, 2003 3,679.33
May 1, 2003 2,755.47
April 1, 2003 1,964.77
March 1, 2003 2'871'79
February 1, 2003 1,885.53
January 1, 2003 2,954.68
2,086.88
2002
December 1, 2002
November 1, 2002 2,319.75
October 1, 2002 2,050.95
September 1, 2002 2,346.88
August 1, 2002 2 188 29
July 1, 2002 2,945.60
June 1, 2002 1,450.04
May 1, 2002 1,853.34
April 1, 2002 1,707.03
March 1, 2002 37
February 1, 2002 1,955.39
1,955.
January 1, 2002 1.725.75
1,282.09
Total ( 31 Months)
72,854.28
Monthly Average For 31 Months
2,350.14
Three Year Total Using Monthly Avera
e
g 84,605.04
I
r. i
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2004-04609 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PADDEN GUERRINI & ASSOCIATES
VS
MCNEW KELLY M
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
MCNEW KELLY M
but was unable to locate Her
deputized the sheriff of YORK
serve the within COMPLAINT & NOTICE
to wit:
He therefore
County, Pennsylvania, to
On October 22nd , 2004 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep York County 37.25
.00
74.25
10/22/2004
PLACEY & WRIGHT
So answer
R! Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed /A o'-before me
this A day of
???A.
Protho otary?
in his bailiwick
28 EAST MARKET ST., YORK, PA 17401
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
t/,/) /n-yDDL
MTRUCT1ONS
PLEASE TYPE OMY LEE 1 THRU 12
DO NOT DETACH ANY COPIES
1. PLAINTIFF/S/ 2. COURT NUMBER
Padden Guerrini & Assoc 04-4609 civil
4. TYPE OF WRIT OR COMPLAINT
3. DEFENDANT/S/
Kelly M. McNew Notice and Complaint
SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD.
Kelly McNew
6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT. NO., CITY, BORO, TWP., STATE AND ZIP CODE)
AT 35 Junction Road Dillsburg, PA 17019
7. INDICATE SERVICE: U PERSONAL O PERSON IN CHARGE *DEPUTIZF?bCTCERT. bWIL O 1ST CLASS MAIL O POSTED O OTHER
NOW Sept 16 20 04 I, SHERIFF OF COUNTY, PA, do hereby deputize the sheriff of
vnrk COUNTY to execute th return thereof according
to law. This deputization being made at the request and risk of the plaintiff. js?lf€Ri F?`F,
6. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WALL ASSIST IN EXPEDITING SERVICE:
Please mail return of service to Cumberland county Sheriff. Thank 409ME6
NOTE: ONLY EXECUTION: IMPOEPHYCE"DNWRIT Of A7CHNAN gA/n/deputy sherI f lelying upon or attaching any properly under within writ may leave same
without a watchman, in custody of whomever is found in sion, after ' 'ng person I?vvyy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before sheriffs sale thereof.
9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED
RICHARD PLACEY 3631 N. FRONT ST. HBG, PA 17110-1533 1236-9577 9-15-04
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. (This area must be completed 8 notice is to be mailed).
CUMBERLAND CO SHERIFF
SPACE SEL.aw IFOR UM OF TM 91 P' - 00 kW iN*M 61'LOW 7M LSE:
13. 1 acknowledge receipt of the writ 14. DATE RECEIVED
or complaint as indicated above. R. AHRENS 9-17-04
)
18. HOW SERVED: PERSONALTY) RESIDENCE f/7\7 POSTED( ) POE( ) SHERIFFS OFFICE ( ) OTHER(
17. O 1 heristly :1 antl return a N T FOUND because I alm 1 unable to locate Bra individual, company, etc. named above. (See remarks below.)
1 E I OF INDIVI SERV L T HE E IF NOT SHOWN ABOVE (Relationship to Defendant) 119.,f7 of Service 120 Time of Service
2 . ATTEMPTSIVte Ti M as Int.ate Time Miles Int. Dale (Time I Miles I IrR I Date Time I Miles I Int. I Date I Tmre((h?II des I Int. I Date I Time Miles I Int.
22. REMARKS:
p?U
23. Adv Gosts 24. ervi Costs 25. N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary 31. Surchg. 32. Tot. Costa
WAVA0 1 ? ( p 2_S I [3s Zs D.c 7. 25
A. Foreign County Costs 135. Advance Costs 136. Service Costs 137. Notary Cert. 138. Mfleage/PostageNot Found 139. Total Costs
41. AFFIRMED and subscribed to before me this 1 v nature of SO ANSWERS
.
42. day of OCT. 44 S
, 2004 43.E D P_ sheriff `
_ _. RJlGielY / NP4?6. Signature of York ///? 9
Nofan3i Sea[ [ t M.L HOiJE .I?// _.^
James V- Va een Notary Publ4
City of York, County, PA
My Commissin- Mar. 21, 20C°' 46. Signature rf Forego
County Sheriff
60. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE
OF AUTHORIZED ISSUING AUTHORITY AND TITLE
1. WHITE - Issuing Aumorry 2. PINK - Attomey 3. CANARY - Sheriffs Office 4. BLUE -Sheriffs Office
)DY lot( c?
?s 011)
tits Due Refund heck No
a
?. Costs Due or Refund
45.30
47. ATE
10-1cc -04
49. DATE
51. DATE RECEIVED
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PADDEN, GUERINI &
ASSOCIATES, P.C.,
Plaintiff
V.
KELLY M. McNEW
Defendant
: NO. 4609 Civil 2004
CIVIL ACTION - LAW
NOTICE TO PLEAD
TO: Padden, Guerini & Associates, P.C., Plaintiff
C/O Richard L. Placey, Esquire
Placey & Wright
3631 North Front Street
Harrisburg, Pennsylvania 17110
You are hereby notified to file a written response to the enclosed Answer
with New Matter within twenty (20) days from service hereof or a judgment may
be entered against you.
Dated:
( 9
Respectfully submitted,
L
StephE, K. Portko, Esquire
1. D. #'19249
Bratic & Portko
101 South U.S. Route 15
Dillsburg, Pennsylvania 17019
(717),432-9706
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PADDEN, GUERINI &
ASSOCIATES, P.C.,
Plaintiff : NO. 4609 Givil 2004
V.
KELLY M. McNEW : CIVIL ACTION - LAW
Defendant
DEFENDANT'S ANSWER WITH NEW MATTER
Defendant Kelly M. McNew, by her attorneys Bratic & Portko and Stephen
K. Portko, Esquire, respectfully submits the following as her Answer with New
Matter to the Complaint filed herein.
ANSWER
1. - 2. Defendant admits the averments in paragraphs 1 and 2.
3. Admitted in part and denied in part. Admitted that on June 26, 2002,
Plaintiff and Defendant entered into an employment agreement. The remaining
averments of paragraph 3 are denied. Plaintiffs employment agreement refers to
the employee's license to practice accounting as a certified public accountant. Its
scope applies to an employee's performance of professional services in the
practice of accounting. Defendant was not hired in such capacity and, therefore,
the terms and conditions are ambiguous, uncertain and not intended to constitute
the actual agreement between the parties.
4. Defendant admits the averments in paragraphs 4.
5. Admitted. By way of further answer, Defendant notified Plaintiff in
advance of that date about terminating her employment because of Plaintiffs
failure to advance Defendant's position in accordance with promises made and
company policy.
6. Defendant denies the averments in paragraph 6. Plaintiff has misstated
the terms of the Employment Agreement between the parties. That Agreement
specifically states in paragraph 7 that, if Defendant should perform services for a
client of the Plaintiff after terminating her employment with Plaintiff, Defendant
"shall pay to the [Plaintiff] Corporation one hundred (100%) percent of the
average annual gross billings to said client by Corporation in the Corporation's
three (3) fiscal years previous to [Defendant's] termination of employment." The
Complaint did not include the word "annual" in its recitation of the terms of the
Agreement, thereby incorrectly trebling the amount of damages claimed.
7. Admitted in part and denied in part. Admitted that Defendant performed
services for Appalachian Rehabilitation. The remaining averments of paragraph 7
are denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth or falsity of the averment
contained in paragraph land therefore denies the allegations thereof. By way of
further answer, Defendant believes and therefore avers that Appalachian
Rehabilitation asked Plaintiff prior to July 16, 2004 about Defendant's
employment with the firm because they intended to terminate Plaintiff as a
provider of Medicare Part B billing services if Defendant no longer handled the
account. Plaintiff then falsely represented to Appalachian Rehabilitation that
Defendant was not leaving the firm so as to keep their business.
8. Denied. On the contrary, Appalachian Rehabilitation contacted
Defendant about serving as their biller for services provided under Medicare B
once they discovered that Defendant had left Plaintiff's employ and that Plaintiff
had deceived them about Defendant leaving the firm. It was a result of Plaintiff's
deception and false statements and the fact that Defendant was no longer
handling the account that caused Appalachian Rehabilitation to terminate
Plaintiff's services.
9. Defendant denies the averments in paragraph 9. Defendant has
averred in paragraphs 10 through 14 of the New Matter filed herein that
Defendant is not liable to compensate Plaintiff and those averments are
incorporated herein by reference. The averments in paragraph 6 of this Answer
are also incorporated herein by reference. The averments in paragraph 6 of this
Answer demonstrate that Plaintiff has omitted the word "annual" in its recitation of
the terms of the Employment Agreement between the parties, and that omission
resulted in an incorrect calculation of the damages claimed by Plaintiff.
WHEREFORE Defendant submits that the Complaint should be dismissed
and judgment entered in her favor.
NEW MATTER
Defendant respectfully submits the following as New Matter.
10. The averments in paragraphs 1 through 9 of the foregoing Answer are
incorporated herein by reference.
11. The employment agreement is ambiguous, uncertain and not intended
to constitute the actual agreement between the parties and Plaintiff's application
and enforcement of the restrictive covenant is unconscionable and made in bad
faith.
12. The provisions in Paragraph 7 of the Employment Agreement
constitute a restrictive covenant not to compete between the Plaintiff as employer
and the Defendant as employee.
13. The terms of that covenant are unreasonable for the following
reasons:
a. The covenant is not reasonably necessary for the protection of the
Plaintiff's business interests.
b. The terms of the covenant unreasonably restrict the legitimate interests
of the Defendant to earn a living in her chosen career.
c. The terms of the covenant are not reasonably limited in time and
geographic extent and are void as a matter of law.
14. The averments in the Complaint erroneously recite the provisions for
calculation of damages for any violation of the restrictive covenant against
competition by not including the word "annual" in that calculation.
15. The Defendant was justified and privileged in terminating her
employment and performing services for any client who wished to employ her.
16. The Plaintiff breached the contract of employment, and thus
Defendant's obligations under the restrictive covenant are terminated.
17. Plaintiff has breached its agreement and its duty to exercise good faith
to Defendants' detriment.
18. The Plaintiffs claim is barred, in whole or in part, by Plaintiffs breach
of implied covenant of good faith and fair dealing.
19. Defendant demands trial by jury.
WHEREFORE Defendant submits that the Complaint should be dismissed
and judgment entered in her favor.
Dated:
i l 1ct Loy-
Respectfully submitted,
Steph n K. Portko, Esquire
I . D. # 19249
Bratic & Portko
101 South U.S. Route 15
Dillsburg, Pennsylvania 17019
(717) 432-9706
Attorney for Defendant
VERIFICATION
I hereby verify, subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities, that the statements; of fact in the foregoing
Answer with New Matter are true and correct to the best of my information and
belief.
Dated:
%mk /0 -
Kelly M. NtMew
CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing Answer with New Matter by
placing a true and correct copy thereof in the United States mail, first class
postage prepaid, addressed as follows:
Richard L. Placey, Esquire
Placey & Wright
3631 North Front Street
Harrisburg, Pennsylvania 17110
Dated:
W19AI
Step en K. Portko, Esquire
c ? C"Y
J-
r' Dl
?F
PADDEN, GUERRINI & IN THE COURT OF COMMON PLEAS OF
ASSOCIATES, P.C., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. NO. 4609 Civil 2004
KELLY M. McNEW,
Defendant CIVIL ACTION - LAW
PLAINTIFF'S RESPONSE TO
DEFENDANT'S NEW MATTER
Plaintiff, Padden, Guerrini & Associates, P.C., by its attorney, Richard L. Placey, sets
forth the following Response to Defendant's New Matter:
10. To the extent that Defendant's Answers to paragraphs 1 through 9 of Plaintiff's
Complaint do not admit averments contained therein and are incorporated by reference into
Defendant's New Matter, Plaintiff denies the allegations and responds as follows:
A. Paragraph 3 - Defendant was hired by Plaintiff as a medical biller trainee
to provide medical care billing services for physical therapy providers and skilled nursing homes.
Plaintiff agreed to hire her, train her and assign to her certain client responsibility, provided she
enter into the Employment Agreement. Defendant had no prior medical billing experience or
training. The Employment Agreement entered into by Defendant with Plaintiff sets forth terms,
conditions and obligations of Defendant on termination of employment.
B. Paragraph 5 - Plaintiff was not notified by Defendant prior to July 16,
2004 of the termination of her employment with it nor was it given any reasons for her
termination until after her resignation.
C. Paragraph 6 - The Employment Agreement provides that Defendant is
obligated to pay one hundred (100%) percent of the Plaintiff's average annual gross billings to
the client in question during the three (3) fiscal years previous to the termination of her
employment.
D. Paragraph 7 - Appalachian Rehabilitation did not advise Plaintiff prior to
July 16, 2004 that it intended to terminate Plaintiff as a provider of Medicare billing services if
Defendant no longer handled its account. On the contrary, Plaintiff avers that it met with
officials of Appalachian Rehabilitation on July 15, 2004, at which meeting those officials
advised Plaintiff that it was happy with its services and intended to expand its services to include
its new facilities in Pittsburgh. Plaintiff informed these representatives that Defendant may
terminate her employment with Plaintiff. Appalachian Rehabilitation advised that every effort
should be made to keep her as an employee.
E. Paragraph 8 - It is denied that Appalachian Rehabilitation contacted
Defendant about serving as their biller for services after she left Plaintiff's employ. Appalachian
Rehabilitation registered Defendant at her home address as its biller for therapy services
provided under Medicare Part B with Veritus (the Medicare Part B intermediary/payor) on or
before June 28, 2004 while she was an employee of Plaintiff. In doing so, Appalachian
Rehabilitation interfered with Plaintiff's contract with Defendant in advance of Defendant's
termination of her employment with Plaintiff on July 16, 2004.
F. Paragraph 9 - Denied for the reasons set forth above and in Plaintiff's
Complaint.
2
11. Denied. The allegations contained in this paragraph are conclusions of law and/or
fact or both and as such no response is required. If response is required, Plaintiff denies the same
and proof thereof is demanded at trial.
12. Denied. The provisions of the Employment Agreement do not restrict Defendant
from competing with Plaintiff, but solely require the payment by Defendant to Plaintiff of
amounts set forth in the Employment Agreement if Defendant begins work for client of Plaintiff
within three (3) years after termination of employment.
13. The averment contained in paragraph 13.a is denied. The agreement to pay
compensation for clients taken by Defendant from Plaintiff is necessary to protect Plaintiff's
business interests. The averments of paragraphs 13a, b and c are conclusions of fact and/or law
to which a response is not required. If a response is required, the same are denied and proof
thereof demanded at trial.
14. Denied. Plaintiff avers that the calculation of damages is correct as set forth in its
Complaint and as set forth in paragraph 10.C above.
15. Denied. Defendant had the right to terminate her employment at any time and to
perform services for any client of Plaintiff's who wished to employ her. In doing so, Defendant
became liable to Plaintiff for the sums set forth in the Employment Agreement.
16. Denied. The averments set forth in paragraph 16 are conclusions of fact and/or
law and, as such, a response is not required. If a response is required, proof thereof is demanded
at trial.
3
17. Denied. The averments set forth in paragraph 16 are conclusions of fact and/or
law and, as such, a response is not required. If a response is required, proof thereof is demanded
at trial.
18. Denied. The averments set forth in paragraph 16 are conclusions of fact and/or
law and, as such, a response is not required. If a response is required, proof thereof is demanded
at trial.
19. No response required.
WHEREFORE, Plaintiff demands judgment against the Defendant in the amount of
Eighty-Four Thousand Six Hundred Five and 04/100 ($84,605.04) Dollars, plus interest from
August 16, 2004 and costs.
Respectfully submitted,
PLACEY & WRIGHT
By:,
Ric aid L. Placey, Esquire
Attorney for Plaintiff
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 236-9577
Supreme Court I.D. No. 07232
Dated: December 8, 2004
4
VERIFICATION
The undersigned, H. David Padden, hereby deposes and says that he is the
President of Padden, Guerrini & Associates, P.C., and makes this verification on behalf of the
said Padden, Guerrini & Associates, P.C., and further states that the averments set forth in the
foregoing document are true and correct to the best of his knowledge, information and belief,
having full corporate authority to do so. This verification is made subject to the penalties of
Pa.C.S. §4904 relating to unsworn falsification to authorities.
C--- Z)
H. David Padden, President
Dated: 17,- G -(3L4,
PADDEN, GUERRINI & IN THE COURT OF COMMON PLEAS OF
ASSOCIATES, P.C., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. NO. 4609 Civil 2004
KELLY M. McNEW,
Defendant CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
AND NOW, this 81h day of December, 2004, comes Richard L. Placey, Esquire, Attorney
for Plaintiff, Padden, Guerrini & Associates, P.C., and certifies that he did serve a true and
correct copy of the foregoing "Response to New Matter" filed on behalf of Plaintiff upon the
Defendant's attorney in the manner indicated below:
FIRST-CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
Stephen K. Portko, Esquire
Bratic & Portko
101 South U.S. Route 15
Dillsburg, PA 17019 ,
ichar acey, Esquire, 7232
EY & WRIGHT
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 236-9577
Dated: December 8, 2004
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) ( X ) for JURY trial at the next tern of civil court.
( ) for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full) (check one)
(X ) Civil Action - Law
PADDEN, GUERRINI & ASSOCIATES, P.C.,
( ) Appeal from Arbitration
(other)
(Plaintiff)
VS.
KELLY M. McNEW,
(Defendant)
Vs.
The trial list will be called on June 21,
and
Trials cormience on July 18, 2005
Pretrials will be held on June 29, 2005
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall)
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 04609 Civil Law
2W 2004
005
Indicate the attorney who will try case for the party who files this praecipe:
Richard L. Placey, Esquire, Placey & Wright, 3631 N. Front St., Harrisburg, PA
17110-1533
Indicate trial counsel for other parties if known:
Ste
n K. Portko, Bratic & Portko, 101 South U.S. Route 15, Dillsburg, PA
This case is ready for trial
Signed:
print NactL / Richard L. Placey
Date: May 25, 2005 Attorney for: Plaintiff
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PADDEN, GUERRINI & IN THE COURT OF COMMON PLEAS OF
ASSOCIATES, P.C., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. CIVIL ACTION - LAW
KELLY M. McNEW,
Defendant NO. 04-4609 CIVIL TERM
ORDER OF COURT
AND NOW, this 30th day of June, 2005, upon consideration of the attached letter
from Plaintiff's attorney, Richard L. Placey, Esq., the above-captioned case is stricken
from the trial list.
Richard L. Placey, Esq.
3631 North Front Street
Harrisburg, PA 17110-1533
Attorney for Plaintiff
Stephen K. Portko, Esq.
101 South U.S. Route 15
Dillsburg, PA 17019
Attorney for Defendant
Court Administrator - A&r( d'e6 ?
9/165-,'
:rc
BY THE COURT,
VINVA,ASNN-,dAn
61-010 i - `nr sooz
AbV'1CtP8U Uad 3a 3C}
30U40-031Y
JUN-28-05 11:28 AM PLACEY-WRIGHT 717 236 0848 P.02
RICHARD L. PLACGv
PLACEY 8 WRIGHT
AMRNEtS AT LAW
333 1 NORM FRONT STREET
HARRISBURG, PENNSYLVANIA 17110.1533'
(717) 230.0577` FAX (717) 836-0943
WtLL1AM K. WRIOHT
(19 4 3-10991
June 28, 2005
Court Administrator
Court of Common Pleas of Cumberland County
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
RE: Padden, Guerrini & Associates v. Kelly M. McNc?
No. 04-4609, Civil Action I
Dear Madam/Sir:
The captioned case was called for trial on the July 18, :2005 Civil Trial List. It was
number 14,
Since the case was called for trial, I have been advised th4 the Defendant, Kelly M.
McNew, filed a bankruptcy Petition on June 9, 2005 to No. 1:05- k-03850-MDF, U.S.
Bankruptcy Court for the Middle District of Pennsylvania, Due t? the automatic stay provisions
of the Bankruptcy Code, please continue and remove the case (rot the trial list and cancel the
pretrial conference scheduled with Judge Oler for 10:00 AM on J#ne 29, 2005.
If you need anything furdier from me at this time, please
Very holy ydttrs,
PLACE' 8t ? WGHT
Richard L. Placey
RLP:hsk
cc: Honorable J. Wesley Oler, Jr. ??
Stephen K., Portko, Esquire
H. David Padden, CPA
VIA FACSIMILE p 110
PADDEN, GUERRINI &
ASSOCIATES, P.C.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04609 2004 - CIVIL
KELLY M. McNEW,
V.
Defendant
: CIVIL ACTION -LAW
TO THE PROTHONOTARY:
WITHDRAWAL OF APPEARANCE
Please withdraw my appearance as attorney for Padden, Guerrini & Associates, P.C. in the
above-captioned matter.
RespectfftlTq submitted,
Dated: Jr J 2 3 to 1o
TO THE PROTHONOTARY:
Ri a, squ'
ttorney for Plaintiff
PLACEY & WRIGHT
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 236-9577
Supreme Court I.D. No. 07232
ENTRY OF APPEARANCE
Please enter my appearance on behalf of Padden, Guerrini & Associates, P.C. in
the above-captioned matter.
Respectfully submitted,
Lawresfice G. Frank, Esquire
2023 N. Second Street., 2nd Fl.
Harrisburg, PA 17102
PH: (717) 234-7455
FX: (717) 234-7470
E-Mail: lawrencefrank@earthlink.net
Supreme Court I.D. No. 15619
PADDEN, GUERRINI & IN THE COURT OF COMMON PLEAS OF
ASSOCIATES, P.C., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 04609 2004 - CIVIL
V.
KELLY M. McNEW,
Defendant CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the attached document was
served on the following by placing a copy of same in the first class U.S. mail today, postage prepaid,
addressed as follows:
Stephen K. Portko, Esquire
101 S. US Highway 15
Dillsburg, PA 17319
Richard L. Placey, Esquire
PLACEY & WRIGHT
3631 North Front Street
Harrisburg, PA 17110-1533
David Padden
Padden, Guerrini & Associates, P.C.
3425 Simpson Ferry Rd.
Camp Hill, PA 17011
/0/,?
j'-f - r'c-?
LA CE G. FRANK, ESQUIRE
c
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Curtis R. Long
Prothonotary
office of the Protbonotarp
Cumberlanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
L.j - " ?(-)9 CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573