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Home My WebLink About12-5473 ~'L~'-G~ FI~~ THE PROTN~NO i~~t~' Z~i2 SEP -4 PM 12~ 25 CUMS l.At~Q COUNTY P~I~~'tSYLYANIA SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA v. CIVIL ACTION -LAW PENN PRODUCTS CORPORATION, :JURY TRIAL DEMANDED Defendant No. /a - ,S y 7,3 CIVIL TERM NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford St. Carlisle, PA 17013 (717) 249-3166 %~S~ ~ ~6 ~Sr~ SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA v. CIVIL ACTION -LAW PENN PRODUCTS CORPORATION, :JURY TRIAL DEMANDED Defendant No. CIVIL TERM COMPLAINT AND NOW comes Plaintiff, Sandra L. McCorkel, by and through her attorney, William H Andring, Esq., and makes the following Complaint: 1. Plaintiff is Sandra L. McCorkel, an adult individual residing at 675 Valley View Drive, Boiling Springs, PA. 2. Defendant is Penn Products Corporation, a Pennsylvania business corporation with a registered office and principal place of business at 13b9 Swope Drive, Boiling Springs, PA 17007. 3. Plaintiff served as an officer of Defendant Penn Products Corporation from 1983 until Apri125, 2012, at which time her employment was terminated by the Board of Directors of Penn Products Corporation. 4. Plaintiff s served as president and chief operating officer of Penn Products Corporation from April of 2006 until her termination on Apri125, 2012. 5. As president and chief operating officer of Penn Products Corporation, Plaintiff was responsible for conducting all of the affairs of the corporation, including land development and the sale of real estate. 6. Plaintiff's compensation for serving as an officer of Penn Products Corporation, as determined and approved by the Board of Directors, consisted of a salary and a ten percent (10%) commission on all sales made by Plaintiff on behalf of the Corporation. 7. During calendar years 2011 and 2012, Plaintiff's salary was $$00.00 per week. 8. From 1983 unti12011, Penn Products Corporation experienced an ongoing shortage of operating funds, and as a result, was frequently unable to make salary and commission payments to employees, make pension payments, and meet other financial obligations. 9. As a result of the circumstances referred to in Paragraph 8 hereof, Plaintiff agreed with Penn Products Corporation to defer collection of various amounts of salary and commissions due and owing to her until such times as the Corporation had sufficient funds to pay these amounts and meet its other financial obligations. 10. All amounts referred to in Paragraph 9 hereof were carried on the books and records as salary accounts or commission accounts payable to Plaintiff, with the full knowledge and acquiescence of the Board of Directors of Penn Products Corporation. 11. As of December 31, 2011, the accounts of Penn Products Corporation indicated that Plaintiff was owed the amount of $42,360.00 for unpaid sales commissions for years prior to 2011. 12. During 2011, Plaintiff earned the amount of $314,000.00 as a commission on the sale of real estate from Penn Products Corporation to the United States Government, which amount had not been paid to Plaintiff as of December 31, 2011, as reflected in the books and records of Penn Products Corporation. 13. As of December 31, 2011, the books and records of Penn Products Corporation reflected that Plaintiff was owed $18,100.00 in salary for the year 2011. 14. As of her termination on Apri125, 2012, Plaintiff had accrued an additional amount of salary due of $13,200.00 for the period from January 1, 2012, through April 25, 2012. 15. During 2009 and 2010, Plaintiff loaned to Penn Products Corporation approximately $25,000.00 to enable Penn Products to meet various financial obligations, in particular to pay taxes due and owing. 16. As of December 31, 2011, the books and records of Penn Products Corporation reflected that the amount of $5000.00 of the loan referred to in Paragraph 16 hereof had not been repaid to Plaintiff. 17. From January 1, 2012, through Apri125, 2012, Penn Products Corporation paid to Plaintiff approximately $26,360.00 in compensation. No other amounts have been paid to Plaintiff by Penn Products Corporation during 2012. 18. As of Apri125, 2012, Penn Products Corporation had sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses. 19. On June 28, 2012, William H. Andring, Esq., attorney for Plaintiff, sent a letter to the officers and directors of Penn Products Corporation, a copy of which is attached hereto as Exhibit One. The letter included a copy of a statement prepared by the accountant for Penn Products Corporation, showing all amounts due and owing to Plaintiff from Penn Products Corporation as of December 31, 2011, and demanding payment of these amounts. 20. Defendant Penn Products Corporation has failed and refused to pay the amounts due and owing to Plaintiff. 21. There exists no good faith contest or dispute on the part of Penn Products Corporation of the amounts due and owing to Plaintiff, as specified in this Complaint. COUNTI WAGE PAYMENT AND COLLECTION LAW 22. The previous paragraphs hereof aze hereby incorporated as though fully set forth herein. 23. The Wage Payment and Collection Law, Act No. 329 of 1961, 43 P.S. §260.1 et seq., provides a statutory remedy for the collection of unpaid wages as defined therein; liquidated damages; attorney fees; and costs. Such an action may be maintained in any court of competent jurisdiction. 24. As of the present date, as specified in Paragraphs 11 through 14 of this Complaint, Penn Products owes to Plaintiff unpaid wages in the amount of $387,660.00, less the payment of approximately $26,360.00, as specified in Pazagraph 17 hereof. 25. The letter referred to in Paragraph 19 hereof constituted a "proper claim" pursuant to the provisions of the Wage Payment and Collection Law. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $361,300.00, plus liquidated damages of 25% of the amount due, plus attorney fees, plus interest, plus costs. COUNT II BREACH OF CONTRACT 26. The previous pazagraphs hereof aze hereby incorporated as though fully set forth herein. 27. Defendant Penn Products Corporation and Plaintiff entered into a contract pursuant to which Plaintiff was to be compensated in the amounts as specified in this Complaint, with payment of the compensation deferred until such time as Penn Products had sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses. 28. Despite the fact that Penn Products has sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses, and that demand for payment has been made by Plaintiff, Penn Products has refused to pay to Plaintiff the amount of salary and commissions due and owing to Plaintiff, and is therefore in breach of the contract between Penn Products and Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $361,300.00, plus attorney fees, plus interest, plus costs. COUNT III QUANTUM MERUIT 29. The previous paragraphs hereof are hereby incorporated as though fiilly set forth herein. 30. Defendant Penn Products Corporation and Plaintiff have had an implied contract pursuant to which Plaintiff was to perform duties as an officer and chief operating officer of Penn Products Corporation, was to sell real estate, and was to be compensated in the amounts as specified in this Complaint, with payment of the compensation deferred until such time as Penn Products had sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses. 3 I . The actions of Plaintiff have conferred substantial benefits on Penn Products Corporation, in that through her actions, the Corporation is solvent and has a current net value of several million dollars, and such actions have been appreciated by Penn Products Corporation. 32. It would be inequitable and unjust for Penn Products to retain such benefits without payment of compensation as specified in this Complaint. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $361,300.00, plus attorney fees, plus interest, plus costs. COUNT IV BREACH OF CONTRACT 33. As specified in Paragraphs 15 and 16 of this Complaint, $5,000.00 of a loan made by Plaintiff to Penn Products remains unpaid; Defendant refuses to pay the amount due, and Defendant is therefore in breach of the contract between Penn Products and Plaintiff. WHEREFORE, Plaintiffrequests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $5,000.00, plus attorney fees, plus interest, plus costs. Respectfully submitted William H. Andring, Esq. Attorney I.D. #26609 248 Creek Road Camp Hill, PA 17011 (717) 975-8796 SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA v. CIVIL ACTION -LAW PENN PRODUCTS CORPORATION, :JURY TRIAL DEMANDED Defendant No. CIVIL TERM VERIFICATION I hereby affirm that the statements contained in the attached document are true and correct, to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. o~ ~ ~ EXHIBIT 1 ~LLIA.~I H. A21~DRING, EsQ. ATTORNEY AT LAW 248 CREEK ROAD C.iMP HILL, PENNSn.v~uvre 17011 TELEPHONE: (71 ~ 9~5=8796 F.U~ (71 n 737-7297 June 28, 2012 David J. Horick, Presid~t Douglas Horick; Board Member Penn Products Corrparation Penn Products ~orporaton 1369 Swope Drive 1369 Swope Drive Boiling Springs, PA 17007 Boiling Springs; PA 17007 Marilyn Bud~ynski, Vice President Richard Magee, Board Member Penn Products Corp+ion Penn Products Corporation 1369 Swope Drive 1369.Swope Drive Boiling Springs, PA 17047 Boiling Springs, PA 17007 Donna L,ee Goff, Secretary Daniel Kuhn, Board Member Penn: Products Corporation Penn Products Corporation 1369 Swope. Drive 1369 Swope Drive Boiling Springs, PA 177 Boiling Springs, PA 17007 Sandra K. Kreider, Treasurer Penn Products Corpor~n 1369 Swope Drive Boiling Springs, PA i 7047 Re: Penn Prndu~ts Coraticxi Sandra. McCorkel -Unpaid Wages and Commissions Dear Officers and Bc~d bars of Penn Products Corporation: According to corresponce which I have received from Marvin Beshore, Esq., the above refereed Officers and Directors of Penn Products Corporation voted at a meeting of tke Board of Directors, held on May 23, 2012, not to ratify the payments made to Sandra Mct~arlcel for salary, coTnissians, and other amounts due to Sandra McCorkel, which were paid to her subsequent to Apri125, 2012. Enclad ~avith tlds letter is a copy of a document prepared by the former accountant for Penn Products Corporation, showing the amounts due and payable to Sandra McCorkel as of December 31, 2011. In addition, Ms. McCorkel earned a salary of $800.00 per week for the period of January 1, 2012 through Apri125, 2012, which amounts remain unpaid. Please consider this letter a demand for the immediate payment of the amounts due and owing to Sandra McCorit.el. You should be aware that, in addition to providing for attorney's fees, pernlties, and liquidated damages, the Pennsylvania Wage Payment and Collection Law, Act No. 329 of 19b1, provides that officers of a corporation who violate the provisions of the Act are guilty of a criminal ol~ense, and prosecution of such offense may be instituted by the Claimant. Also, failure tv act in accordance with the provisions of the Act could subject you to personal liability for breech of f ducary duty. If you have any questions, please contact me. Very truly yours, WILLIAM H. ANDRING 6~~ Fenn Prods tric. P pgl3/6/2011 1'2131/2011 y lalcCc loan 5, 000.00 M~Ci 250.00 A~t~~ Cc~f6i~tvgr fiats 35, 360.00 San~dY ~cCtai Co~~ x'10-tot 146 7,000.00 47,610.00 l4A~CA1~e1 ~ x'11 18,100.00 705 Y i~AcCreai C Sale 314,000.00 716 ~ Aie1l 131'/10 2,850.00 820 ir~ne~n & MciCc~f~t# L4 3,228.75 829 ADD: Ct~t Year 338,178.75 200 TOTAL A/P 385,788.75 '#~13~f'~d 1Z/31J11 58 7 ~E~"f0 #,0.00 J/E 6 AdEf 12131/11 ~;'F7~.75) J/E 9 Arconnts Pay~ale 12f31l1 °t ~ ,~i i ; :75 AA #200. ~~rt zorZOer23 ~~~ ,: ~~ CUMBER~~,Hp CCUNT'Y PENNS Y~,yANIA SANDRA I . McCORKEL: Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. PENN PF:ODUC"I~S CORPORATION, Defendant CIVIL ACTION -LAW NO. 2012-5473-CIVIL TERM JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW comes Defendant, PENN PRODUCTS CORPORATION. by ar~d through its atton~ey. Marvin Beshore, Esquire, and states the following P~°eliminary Objections to Plaintiff's Complaint: FIRST PRELIMINARY OBJECTION: MOTION TO STRIKE COUNTS I, II, AND III BECAUSE THEY FAIL TO COMPLY WITH Pa. R.C.P. 1019(f1 1 _ Pa. R.C.P. 1028(a)(2) provides for a preliminary objection for ``failure ot~a pleading to conform to law or rule of court." 2. Pa. R.C.P. l OI 9(f) requires "[a]verments of time, place, and items of special damages" to be stated specilicauly. 3. Plaintiff alleges in Paragraph 6 of the Complaint, "Plaintift~ s compensation for serving as an officer of Penn Products Corporation, as determined and approved at various times by the Board of Directors during her period of employment from 1979 to 2012, and agreed to by Plaintiff, consisted of a salary and a ten percent (10%) commission on all sales made by Plaintiff on behalf of the Corporation.'' This allegation forms the basis of Counts I, II, and III ofthe Complaint. 4. While Paragraph 6 contains a key allegation of past action by the Board cif Directors of Penn Products Corporation, it does not specifically state when that action took place, but generally suggests that it was "at various times... from 1979 to 2012.'" 5. I3y failing to specifically state the time of the Board's alleged action. P1~~~#ntiff s Complaint violates RLile 1019(f). WHEREFORE, Defendant respectfully requests this Honorable Court to sustain its Motion to Strike the Complaint for Failure to Comply with Pa. R.C.P. 1019(f). SECOND PRELIMINARY OBJECTION- llEMURRER IN THE NATURE OF A MOTION TO STRIKE CLAIM FOR LIQUIDATED DAMAGES IN COUNT' I BECAUSE IT IS NOT_RIPE 6. Pa. R.C.P. 1028(a)(2) provides for a preliminary objection for "failure of a pleading to conform t~o law or rule of court." 7. (`punt I of the Complaint purports to state a claim under Pennsylvania's ~~'age Payment and Collection Law, 43 P.S. §260. I et seq. R. `l'he Complaint does not allege any regular payday, but alleges that the pa~~~ties agreed that payment would be deferred. See Complaint, ~; 9. 9. 'The Wage Payment and Collection Law, 43 P.S. § 260.10, provides that v,~hen there is no regular payday, liquidated damages may be available when wages remain unpaid "'tor sixty days beyond the filing by the employee of a proper claim or sixty days beyond the date of the agreement.. award or other act making wages payable... and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists 2 accounting for such non-payment..."(emphasis added). 0. This Connplaint is the first "proper claim" that Plaintiff has filed. Whip. the statute does not define the phrase, "proper claim," the use of the term, "filing," indicates a claim made with an official body pursuant to the statute; i.e., a civil action in a court of competent jurisdiction, or a claim with the Department of Labor and Industry. See 43 P.S. ~ ~ ?60.8, 260.9a. `'Filing' does not reasonably include sending a letter to 1:he directors of a corporaticn~~. Furthermore, only subsequent to the '`filing" of such a "proper claim'' can there be ti-, determination of whether there is a ",good faith contest or dispute of ar~y wage clairra inchiding the good faith assertion of a right oi'set-off or counter-claim exists accounting for sl.~ch non- payment.~~ 11. Because Plaintiff has just filed a "proper claim" on September 4, 20f 2, her claim for liquidated damages is not ripe and should be stricken. WI IEREFOR~, Plaintiff requests this Honorable Court to sustain its Motion to Strike Claim for Liquidated Damages in Count I. THIRD PRELIMINARY OBJECTION'. DEMURRER TO COUNT III (QUANTUM MERUIT) 12. Pa. RC.P. 1028(a)(4) pernits a preliminary objection to a pleading base-i on its `legal insufficiency (demurrer)." ~ Here. there is already evidence that Penn Products Corporation has a good faith contest or right of set-off because on August 8, 2012, Penn Products Corporation filed a complaint against Plaintiff, her brothers, and her sister-in-law (the four directors of Penn Products Corporation before April 25, 2012) for breach of tiduciary duty. The Corporation seeks recovery of approximately $700,000 and a declaratory judgment that the amounts claimed in the instant Complaint are not due. That case is styled Penn Products Corporatioy~ v. McCorkel, e~ a/„ and is docketed to Cumberland County Civil Action No. 2012-4949. 3 13. Count I of the Complaint purports to state a claim under Pennsylvania's V1'ag~ Payment and Collection Law, 43 P.S. § 260.1, etseq. A,n employment contract is necessary for any clairr~ under that statute, see Lehman v. Legg Mason, Irrc., 532 F.Supp.2d 726 (M.I),Pa. 2007). and the court should dismiss a purported Wage Payment and Collection Lair claim when the plaintiff fails to allege an employment contract. Id. Here. Plaintiff effectively pleads an employment contract by asserting an agreement between herself and Penn Products Corporation by which she served as an officer of -Penn Products Corporation at a specified salarti plus a commission on real estate sales. Complaint, ¶ 6. 14-. Count II incorporates all prior allegations and purports to state a claim f~:~r breach of contract for failing to pay the wages claimed in Count I. Count II, Paragraph 27. of~ the Complaint alleges, "Penn Products Corporation and Plaintiff entered Tinto a contract pursuant to which Plaintiff was to be compensated in the amounts as specified in this Complaint ..." 15. Count III incorporates all prior allegations by reference, including paragraph 6 and 27, but purports to state a claim for quantati~rr meNarit. l h. A claim fir quantum mer~uit is a form of a claim for unjust enrichment. .~~~~~ Mitchell v. R7or~~-e. 729 A2d 1:200, 1203 (Pa. Super. 1999). A claim for ~mjust enrichment cannot stand when there is an express contract between the parties. I~. (The court, "may not make a finding of unjust enrichment... «~here a written or express contract exists.") ; hill'ores•i v. Fem~rinella. 856 A.2d 78. ~~4 (Pa. Super. 2004) ("Where an express contract already exists to define tale parameters of the parties' respective duties, the parties may avail themselves of contract remedies and an eduitable remedy for unjust enrichment cannot be deemed 1o exist."). 4 nn express contract need not be written, but may be oral See Shuey v. Rump, 421 ;~.2d 32.4, 325 (Pa.Supe.~~. 1980). 17. Because Plaintiff has affirmatively averred an express contract between herself and Defendant that forms, the basis of Plaintiff's claims against Defendant, Plaintiff s claim for unjust enrichment. is legally insufficient and should be dismissed with prejudice. Vl-'IIERF,FORE, Defendant respectfully requests this Honorable Court to sustain Defendants Demurrer to Count III of the Complaint and to dismiss Count III. with prejudice. FOURTH PRELIMINARY OBJECTION: MOTION TO STRIKE COUNT' I FOR FAILURE TO EXERCISE A STATUTORY REMEBY 18. Pa. R.C.F'. 1028(a)(7) provides for a preliminary objection for "failure ~~1~:~ exercise or exhaust a statutory remedy." (Emphasis added). l ~~. Count I of the Complaint purports to state a claim under tlhe Wage Payment and Collection Law. 43 P.S. §§ 260.1, et sey. ?0. ~3 P.S. S 260.8 gives the Secretary of Labor and Industry the "duty... to~ enforce and administer the provisions of this act, to investigate any alleged violations of this act and to investigate any alleged violations of this act and to institute prosecutions and actions as provided hereunder.' Furthermore, Section 260.9a of the Law, which addresses remedies and, penalties, sets forth a detailed procedure for an aggrieved employee or former employee to obtain a remedy through the Secretary of Labor and Industry. 21. While the Secretary of Labor and Industry does not have the exclusive right to enforce the Law, the enforcement, remedy and penalty provisions set forth in 43 P.S.~~'~ 260.8 and 260.9a clearly set forth a statutory remedy. The Plaintiff herein has failed to "exercise" that remedy . 5 WHF',REFORIE. Defendant respectfully request this Honorable Court to sustain Defendant's Motion to Strike Count I of the Complaint and to dismiss Cow1t I with. prejudice. Respectfiilly submitted -~ Marvin Beshore, Esquire Attorney ID # P~~ 31979 130 State Street, P.O. Boa 946 Harrisburg, PA 17108-0946 717-236-0781. Fax: 717-236-(~`7~)1 MBeshore~~beshorelaw.com Attorney.for• Defc~ndunt Date~I: October 22, 2012 6 v. PENN PRODUCTS CORPORATION, Defendant CIVIL ACTION -LAW NO. 2012-5473-CIVIL TERM NRY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant's Preliminary Objections was served this 23`d day of October 2012 upon all counsel/parties of record by depositing the same in the United States mail, first class postage prepaid in Harrisburg, PA, addressed as follows: William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 Tara ~.. Swartz, Paralegal 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 2~ 12 NQ~ 13 PN I = z 3 CUM~E~L~+tlD CO~JtdTY PEN'NSYLV~'1NIA SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA v. CIVIL ACTION -LAW PENN PRODUCTS CORPORATION, :JURY TRIAL DEMANDED Defendant No. 2012 - 5473 CIVIL TERM NOTICE TO PLEAD To: Penn Products Corporation You are hereby notified to file a written response to the enclosed Secvond Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. WILLIAM H. ANDRING,~SQ. Attorney for Plaintiffs SANDRA L. McCORKEL, Plaintiff v. PENN PRODUCTS CORPORATION, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION -LAW JURY TRIAL DEMANDED No. 2012 - 5473 CIVIL TERM SECOND AMENDED COMPLAINT AND NOW comes Plaintiff, Sandra L. McCorkel, by and through her attorney, William H Andring, Esq., and makes the following Amended Complaint: 1. Plaintiff is Sandra L. McCorkel, an adult individual residing at 675 Valley View Drive, Boiling Springs, PA. 2. Defendant is Penn Products Corporation, a Pennsylvania business corporation with a registered office and principal place of business at 1369 Swope Drive, Boiling Springs, PA 17007. 3. Plaintiff served as an officer of Defendant Penn Products Corporation from 1979 until April 25, 2012, at which time her employment was terminated by the Board of Directors of Penn Products Corporation. 4. Plaintiff s served as president and chief operating officer of Penn Products Corporation from April of 2006 until her termination on April 25, 2012. 5. As president and chief operating officer of Penn Products Corporation, Plaintiff was responsible for conducting all of the affairs of the corporation, including land development and the sale of real estate. 6. Plaintiff s compensation for serving as an officer of Penn Products Corporation, as determined and approved at various times by the Board of Directors during her period of employment from 1979 to 2012, and agreed to by Plaintiff, consisted of a salary and a ten percent (10%) commission on all sales made by Plaintiff on behalf of the Corporation. Sales commissions for officers engaged in the sale of real estate were first instituted by the Corporation on March 27, 1972, and continued until Apri125, 2012. The actions of the Board of Directors of Penn Products Corporation in this respect are reflected in the corporate books and records of Penn Products Corporation, which are in the possession of Penn Products Corporation and not in the possession of Plaintiff. No express, written employment contract was entered into by Plaintiff and Defendant. 7. During calendar years 2011 and 2012, Plaintiff's salary was $800.00 per week. 8. From 1983 unti12011, Penn Products Corporation experienced an ongoing shortage of operating funds, and as a result, was frequently unable to make salary and commission payments to employees, make pension payments, and meet other financial obligations. 9. As a result of the circumstances referred to in Paragraph 8 hereof, Plaintiff entered into an oral agreement with Penn Products Corporation in 1983 to defer collection of salary and commissions due and owing to her until such times as the Corporation had sufficient funds to pay these amounts and meet its other financial obligations. 10. All amounts referred to in Paragraph 9 hereof were carried on the books and records as salary accounts or commission accounts payable to Plaintiff, with the full knowledge and acquiescence of the Board of Directors of Penn Products Corporation. 11. As of December 31, 2011, the accounts of Penn Products Corporation indicated that Plaintiff was owed the amount of $42,360.00 for unpaid sales commissions for years prior to 2011. 12. During 2011, Plaintiffearned the amount of $314,000.00 as a commission on the sale of real estate from Penn Products Corporation to the United States Government, which amount had not been paid to Plaintiff as of December 31, 2011, as reflected in the books and records of Penn Products Corporation. 13. As of December 31, 2011, the books and records of Penn Products Corporation reflected that Plaintiff was owed $18,100.00 in salary for the year 2011. 14. As of her termination on Apri125, 2012, Plaintiff had accrued an additional amount of salary due of $13,200.00 for the period from January 1, 2012, through April 25, 2012. 15. During 2009 and 2010, Plaintiff and Penn Products Corporation entered into an oral agreement whereby plaintiff lent to Penn Products Corporation approximately $25,000.00 to enable Penn Products to meet various financial obligations, in particular to pay taxes due and owing, said loan to be repaid when Penn Products Corporation had a sufficient amount of cash to repay the loan. 16. As of December 31, 2011, the books and records of Penn Products Corporation reflected that the amount of $5000.00 of the loan referred to in Paragraph 16 hereof had not been repaid to Plaintiff. 17. From January 1, 2012, through Apri125, 2012, Penn Products Corporation paid to Plaintiff approximately $26,360.00 in compensation. No other amounts have been paid to Plaintiff by Penn Products Corporation during 2012. 18. As of Apri125, 2012, Penn Products Corporation had sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses. 19. On June 28, 2012, William H. Andring, Esq., attorney for Plaintiff, sent a letter to the officers and directors of Penn Products Corporation, a copy of which is attached hereto as Exhibit One. The letter included a copy of a statement prepared by the accountant for Penn Products Corporation, showing all amounts due and owing to Plaintiff from Penn Products Corporation as of December 31, 2011, and demanding payment of these amounts. 20. Defendant Penn Products Corporation has failed and refused to pay the amounts due and owing to Plaintiff. 21. There exists no good faith contest or dispute on the part of Penn Products Corporation of the amounts due and owing to Plaintiff, as specified in this Complaint. COUNTI WAGE PAYMENT AND COLLECTION LAW 22. The previous paragraphs hereof are hereby incorporated as though fully set forth herein. 23. The Wage Payment and Collection Law, Act No. 329 of 1961, 43 P.S. §260.1 et seq., provides a statutory remedy for the collection of unpaid wages as defined therein; liquidated damages; attorney fees; and costs. Such an action may be maintained in any court of competent jurisdiction. 24. As of the present date, as specified in Paragraphs 11 through 14 of this Complaint, Penn Products owes to Plaintiff unpaid wages in the amount of $387,660.00, less the payment of approximately $26,360.00, as specified in Paragraph 17 hereof, pursuant to the agreement between Plaintiff and Defendants referred to in Paragraph 6 hereof. 25. The letter referred to in Paragraph 19 hereof constituted a "proper claim" pursuant to the provisions of the Wage Payment and Collection Law. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $361,300.00, plus liquidated damages of 25% of the amount due, plus attorney fees, plus interest, plus costs. COUNT II BREACH OF CONTRACT 26. The previous paragraphs hereof are hereby incorporated as though fully set forth herein. 27. Defendant Penn Products Corporation and Plaintiff entered into a contract pursuant to which Plaintiff was to be compensated in the amounts as specified in this Complaint, with payment of the compensation deferred until such time as Penn Products had sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses. 28. Despite the fact that Penn Products has sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses, and that demand for payment has been made by Plaintiff, Penn Products has refused to pay to Plaintiff the amount of salary and commissions due and owing to Plaintiff, and is therefore in breach of the contract between Penn Products and Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $361,300.00, plus attorney fees, plus interest, plus costs. COUNT III QUANTUM MERUIT 29. The previous paragraphs hereof are hereby incorporated as though fully set forth herein. 30. Defendant Penn Products Corporation and Plaintiff have had an implied contract pursuant to which Plaintiff was to perform duties as an officer and chief operating officer of Penn Products Corporation, was to sell real estate, and was to be compensated in the amounts as specified in this Complaint, with payment of the compensation deferred until such time as Penn Products had sufficient cash on hand to pay any and all debts or other accounts payable, and meet all operating expenses. 31. The actions of Plaintiff have conferred substantial benefits on Penn Products Corporation, in that through her actions, the Corporation is solvent and has a current net value of several million dollars, and such actions have been appreciated by Penn Products Corporation. 32. It would be inequitable and unjust for Penn Products to retain such benefits without payment of compensation as specified in this Complaint. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $361,300.00, plus attorney fees, plus interest, plus costs. COUNT IV BREACH OF CONTRACT 33. As specified in Paragraphs 15 and 16 of this Complaint, $5,000.00 of a loan made by Plaintiff to Penn Products remains unpaid; Defendant refuses to pay the amount due, and Defendant is therefore in breach of the contract between Penn Products and Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant and in favor of the Plaintiff in the amount of $5,000.00, plus attorney fees, plus interest, plus costs. Respectfully submitted / "` William H. Andring, Esq. Attorney I.D. #26609 248 Creek Road Camp Hill, PA 17011 (717) 975-8796 SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA v. . CIVIL ACTION -LAW PENN PRODUCTS CORPORATION, :JURY TRIAL DEMANDED Defendant No. 2012 - 5473 CIVIL TERM VERIFICATION I hereby affirm that the statements contained in the attached document are true and correct, to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. EXHIBIT 1 T/1~ILLIAM H. ANDRING, ESQ. ATTORNEY AT LAW 248 CREEK ROAD CAMP HILL, PENNSYLVANIA 17011 TELEPHONE: (71 ~ 975-8796 FAx (717) 737-7297 June 28, 2012 David J. Horick, President Penn Products Corporation 1369 Swope Drive Boiling Springs, PA 17007 Douglas Horick, Board Member Penn Products corporation 1369 Swope Drive Boiling Springs; PA 17007 Marilyn Bud2ynski, Vice President Penn Products Corporation 1369 Swope Drive Boiling Springs, PA 17007 Donna Lee Goff, Secretary Penn Products Corporation 1369 Swope Drive Boiling Springs, PA 17007 Sandra K. Kreider, Treasurer Penn Products Corporation 1369 Swope Drive Boiling Springs, PA 17007 Richazd Magee, Boazd Member Penn Products Corporation 1369 Swope Drive Boiling Springs, PA 17007 Daniel Kuhn, Board Member Penn Products Corporation 1369 Swope Drive Boiling Springs, PA 17007 Re: Penn Products Corporation Sandra McCorkel -Unpaid Wages and Commissions Deaz Officers and Board Members of Penn Products Corporation: According to correspondence which I have received from Marvitl Beshore, Esq., the above referenced Officers and Directors of Penn Products Corporation voted at a meeting of the Board of Directors, held on May 23, 2012, not to ratify the payments made to Sandra McCorkel for salary, commissions, and other amounts due to Sandra McCorkel, which were paid to her subsequent to April 25, 2012. Enclosed with this letter is a copy of a document prepared by the former accountant for Penn Products Corporation, showing the amounts due and payable to Sandra McCorkel as of December 31, 2011. In addition, Ms. McCorkel earned a salary of $800.00 per week for the period of January 1, 2012 through Apri125, 2012, which amounts remain unpaid. Please consider this letter a demand for the immediate payment of the amounts due and owing to Sandra McCorkel. You should be aware that, in addition to providing for attorney's fees, penalties, and liquidated damages, the Pennsylvania Wage Payment and Collection Law, Act No. 329 of 1961, provides that officers of a corporation who violate the provisions of the Act are guilty of a criminal offense, and prosecution of such offense may be instituted by the Claimant. Also, failure to act in accordance with the provisions of the Act could subject you to personal liability for breach of fiduciary duty. If you have any questions, please contact me. Very truly yours, WILLIAM H. ANDRING ~; ~~ ~~ Penn Products tnc. Accounts Payable 12/31/2011 Sandy McCorkel loan Sandy McCorkel warms $a1q(~y MCCQricel COIT~fi1~SdS14,?Fl-~3flOf ye8l'S Sandy McCor4cel Contrr-issibn 2010-Lot 146 Sandy McCorkel Satery 21111 Sandy McCorkel Cornnron Acreage Sate KESB Accx~unttng Fee 12/31/10 Irwin & McKnight Legal ADD: Current Year TOTAL A/P Acvouttt5 Pte 12/31/10 Paid 12/31/11 Reverse J/E 7 2010 Add 12/31/11 Accounts Payable 12/31/11 0,205.56) 8~1Q39556 1,200.00 J/E 6 X338,178.75) J/E 9 385,788.75) ~~ . pgl3l6/2011 5, 000.00 250.00 35,350.00 7,000.00 47,610.00 18,100.00 314,000.00 2,850.00 3,228.75 338,178.75 385,788.75 705 716 820 829 200 AA #200. r SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA v. CIVIL ACTION -LAW PENN PRODUCTS CORPORATION, :JURY TRIAL DEMANDED Defendant No. 2012 - 5473 CIVIL TERM CERTIFICATE OF SERVICE I, William H. Andring, hereby certify that on this, the 13th day of November, 2012, I served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage prepaid, addressed as follows: Marvin Beshore, Esq. 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 ~~~/` r- ~ tt ,_ .. ~. ~ L ~t.` t l~ r: j ZGl2 OEC -3 PM 3~ 53 CUMBER~AP~~ CuU'~T' PENNSYLVAFdfA SANDRA L. McCORKEL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW N0.2012-5473-CIVIL TERM PENN PRODUCTS CORPORATION, Defendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW comes Defendant, PENN PRODUCTS CORPORATION, by and through its attorney, Marvin Beshore, Esquire, and states the following Preliminary Objections to Plaintiff's Second Amended Complaint: FIRST PRELIMINARY OBJECTION: DEMURRER IN THE NATURE OF A MOTION TO STRIKE CLAIM FOR LIQUIDATED DAMAGES IN COUNT I 1. Pa. R.C.P. 1028(a)(2) provides for a preliminary objection for "failure of a pleading to conform to law or rule of court." 2. Count I of the Complaint purports to state a claim under Pennsylvania's Wage Payment and Collection Law, 43 P.S. §260.1 et seq. 3. The Complaint does not allege any regular payday, but alleges that the parties agreed that payment would be deferred. See Complaint, ¶ 9. 4. The Wage Payment and Collection Law, 43 P.S. § 260.10, provides that when there is no regular payday, liquidated damages may be available when wages remain unpaid "for sixty 00059964.WPD; vi days beyond the filing by the employee of a proper claim or sixty days beyond the date of the agreement, award or other act making wages payable... and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment..."(emphasis added). 5. This Complaint is the first "proper claim" that Plaintiff has filed. While the statute does not define the phrase, "proper claim," the use of the term, "filing," indicates a claim made with an official body pursuant to the statute; i.e., a civil action in a court of competent jurisdiction, or a claim with the Department of Labor and Industry. See 43 P.S. §§ 260.8, 260.9a. "Filing" does not reasonably include sending a letter to the directors of a corporation. 6. Because Plaintiff has just filed a "proper claim," her claim for liquidated damages is not ripe and should be stricken. 7. Pa.R.Civ.P. 1028(a)(4) provides for a preliminary objection based on a pleading's "legal insufficiency ... (demurrer)." 8. A claim for liquidated damages under Pennsylvania's Wage Payment and Collection Law, 43 P.S. §260.1 et seq., is predicated on the lack of a "good faith contest or dispute .. . including the good faith assertion of a right of set-off or counter-claim ...accounting for such non-payment." 9. Plaintiff knows that there is a "good faith contest or dispute," because on August 8, 2012, well before Plaintiff filed the instant action, Penn Products Corporation filed a complaint against Plaintiff, her brothers, and her sister-in-law (the four directors of Penn Products Corporation before April 25, 2012) for breach of fiduciary duty. The Corporation seeks recovery of approximately $700,000 and a declaratory judgment that the amounts claimed in the instant 00059964.WPll; vl 2 action are not due. That case is styled Penn Products Corporation v. McCorkel, et al., and is docketed to Cumberland County Civil Action No. 2012-4949. 10. Plaintiff s claim for liquidated damages in Count I is legally insufficient and must fail because there is a "good faith contest or dispute." WHEREFORE, Plaintiff requests this Honorable Court to sustain its First Preliminary Objection and Strike-off and dismiss with prejudice Plaintiffs claim for liquidated damages in Count I. SECOND PRELIMINARY OBJECTION: DEMURRER TO COUNT III (QUANTUM MERUITI 1. Pa. R.C.P. 1028(a)(4) permits a preliminary objection to a pleading based on its "legal insufficiency ... (demurrer)." 12. Count I of the Complaint purports to state a claim under Pennsylvania's Wage Payment and Collection Law, 43 P.S. § 260.1, et seq. An employment contract is necessary for any claim under that statute, see Lehman v. Legg Mason, Inc., 532 F.Supp.2d 726 (M.D.Pa. 2007), and the court should dismiss a purported Wage Payment and Collection Law claim when the plaintiff fails to allege an employment contract. Id. Here, Plaintiff effectively pleads an employment contract by asserting an agreement between herself and Penn Products Corporation by which she served as an officer of Penn Products Corporation at a specified salary plus a commission on real estate sales. Complaint, ¶ 6. 13. Count II incorporates all prior allegations and purports to state a claim for breach of contract for failing to pay the wages claimed in Count I. Count II, Paragraph 27, of the Complaint alleges, "Penn Products Corporation and Plaintiff entered into a contract pursuant to which Plaintiff was to be compensated in the amounts as specified in this Complaint ..." 00059964.WPD; vl 3 14. Count III incorporates all prior allegations by reference, including paragraphs 6 and 27, but purports to state a claim for quantum meruit. 15. A claim for quantum meruit is a form of a claim for unjust enrichment. See Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). A claim for unjust enrichment cannot stand when there is an express contract between the parties. Id. (The court, "may not make a finding of unjust enrichment... where a written or express contract exists.") ; Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. 2004) ("Where an express contract already exists to define the parameters of the parties' respective duties, the parties may avail themselves of contract remedies and an equitable remedy for unjust enrichment cannot be deemed to exist."). An express contract need not be written, but may be oral. See Shuey v. Rump, 421 a.2d 324, 325 (Pa.Super. 1980). 16. Because Plaintiff has afFrmatively averred an express contract between herself and Defendant that forms the basis of Plaintiff's claims against Defendant, Plaintiff's claim for unjust enrichment is legally insufficient and should be dismissed with prejudice. WHEREFORE, Defendant respectfully requests this Honorable Court to sustain Defendant's Demurrer to Count III of the Complaint and to dismiss Count III with prejudice. THIRD PRELIMINARY OBJECTION: MOTION TO STRIKE COUNT I FOR FAILURE TO EXERCISE A STATUTORY REMEDY 17. Pa. R.Civ.P. 1028(a)(7) provides for a preliminary objection for "failure to exercise or exhaust a statutory remedy." (Emphasis added). 18. Count I of the Complaint purports to state a claim under the Wage Payment and Collection Law, 43 P.S. §§ 260.1, et seq. 00059964.WPll; vl 4 19. 43 P.S. § 260.8 gives the Secretary of Labor and Industry the "duty... to enforce and administer the provisions of this act, to investigate any alleged violations of this act and to investigate any alleged violations of this act and to institute prosecutions and actions as provided hereunder." Furthermore, Section 260.9a of the Law, which addresses remedies and penalties, sets forth a detailed procedure for an aggrieved employee or former employee to obtain a remedy through the Secretary of Labor and Industry. 20. While the Secretary of Labor and Industry does not have the exclusive right to enforce the Law, the enforcement, remedy and penalty provisions set forth in 43 P.S. §§ 260.8 and 260.9a clearly set forth a statutory remedy. The Plaintiff herein has failed to "exercise" that remedy. WHEREFORE, Defendant respectfully request this Honorable Court to sustain Defendant's Motion to Strike Count I of the Complaint and to dismiss Count I with prejudice. Respectfully submitted, Dated: December 3, 2012 Marvin Beshore, Esquire Attorney ID # PA 31979 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 717-236-0781, Fax: 717-236-0791 MBeshore@beshorelaw.com Attorney for Defendant 00059964.WPD; vl S SANDRA L. McCORKEL, Plaintiff v. PENN PRODUCTS CORPORATION, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2012-5473-CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant's Preliminary Objections to Plaintiffls Second Amended complaint was served this 3rd day of December 2012 upon all counsel/parties of record by depositing the same in the United States mail, first class postage prepaid in Harrisburg, PA, addressed as follows: William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 ~~ Marvin Beshore, Esquire 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 00059964.WPD; vl 6 n, f PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Sandra L. McCorkel vs. ne)Z3 (List the within matter for Mt -- 31- ---------------------- -- --------- -? ; CO Penn Products Corporation No 5473 2012 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Second Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: William H. Andring, Esq. (Name and Address) 248 Creek Road, Camp Hill, PA 17011 (b) for defendants: Marvin Beshore, Esq. (Name and Address) 130 State St., P.O. Box 946, Harrisburg, PA 17108 3. 1 will notify all parties in writing within two days that this case has been listed for argument. A Argument Court Date: Date 1/28/13 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 IR. )5 F)J al easv) Sandra L, McCorkel PENN PRODUCTS CORPORATION, IN THE COURT OF COMMON PLAINTIFFS PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SANDRA L. McCORKEL, GREGORY R. SWOPE, JOHN D. SWOPE, AND MEGAN SWOPE, DEFENDANTS 12-4949 CIVIL TERM ----------------------------------------------------------------- SANDRA L. McCORKEL IN THE COURT OF COMMON PLAINTIFF PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENN PRODUCTS CORPORATION, DEFENDANT 12-5473 CIVIL TERM V/ ORDER OF COURT AND NOW, this day of April, 2013, upon consideration of the Motions to Consolidate filed by Plaintiff/Defendant Penn Products Corporation in the cases docketed at 12-4949 and 12-5473, respectively, the Motion is GRANTED. The captioned actions are consolidated for all purposes and shall proceed under docket 12-4949 as it was first filed. Cf. Pa.R.C.P. No. 213.1(b) (regarding coordination of actions in different counties). By the Court, Albert H. Masland, J. V Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 U1 ✓ William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 ry SANDRA L. McCORKEL IN THE COURT OF COMMON PLAINTIFF PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENN PRODUCTS CORPORATION, DEFENDANT 12-5473 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE HESS, P.J., MASILAND, J. AND PLACEY, J. ORDER OF COURT AND NOW, this day of April, 2013, Defendant's Preliminary Objections are OVERRULED in all respects. Defendant shall file an Answer within twenty (20) days. By the Court, Albert H. Masland, J. f V William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 For Plaintiff ✓ Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 For Defendant -77) 'Pilo SANDRA L. McCORKEL IN THE COURT OF COMMON PLAINTIFF PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENN PRODUCTS CORPORATION, DEFENDANT 12-5473 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE HESS, P.J., MASLAND, J. AND PLACEY, J. OPINION AND ORDER OF COURT Masland, J., April 6, 2013:-- Before the court are the Preliminary Objections filed by Defendant Penn Products Corporation to the Second Amended Complaint filed by Plaintiff Sandra L. McCorkel. Following briefing by the parties and argument en bans, we overrule the objections in all respects. I. Background This matter arises from a dispute between the Defendant Corporation and the Plaintiff, a former officer and director of the corporation. The Plaintiff seeks the recovery of salary and sales commissions she claims are due and owing from the Defendant. She also seeks repayment of a loan she made to the Defendant. Defendant presents the following arguments in support of its objections to Plaintiffs Second Amended Complaint: 1. The Court should dismiss Plaintiffs claim for liquidated damages in Count I because it is not ripe and is statutorily barred by Defendant's good faith defense; 12-5473 CIVIL TERM 2. The Court should dismiss Count III (Quantum Meruit) because it fails to state a cause of action under Pennsylvania law; and 3. The Court should dismiss Count I due to Plaintiffs failure to exercise a statutory remedy. II. Discussion A. Liquidated Damages Plaintiff is seeking liquidated damages from the Defendant for failure to pay her wages, pursuant to Pennsylvania's Wage Payment and Collection Law (Law), 43 P.S. §260.1 et seq. The Law provides, in relevant part: Where wages remain unpaid for ... sixty days beyond the filing by the employe of a.2ror)er claim ... and no good faith contest or dispute of any wage claim including the good faith assertion of a right of se or counter-claim exists accounting for such non-payment, the emplove shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater. 43 P.S. § 260.10 (emphasis added). 1. Proper Claim Defendant first claims Plaintiffs demand for liquidated damages is premature as she did not allow sixty days to pass after filing a statutorily required "proper claim"for her unpaid wages before seeking special damages. According to Defendant, the date of Plaintiffs proper claim is the date she filed the instant civil Complaint. For her part, Plaintiff contends the date her counsel sent a demand letter to Defendant demanding the payment of salaries and commissions allegedly owed constitutes the date of her proper claim. -2- 12-5473 CIVIL TERM First, because the term "claim" is not defined within the Law, the parties have grappled over the meaning of"filing by the employe of a proper claim." Defendant would have us focus on the word "filing" and interpret it to require the filing of a civil complaint. We decline to do so. Had the General Assembly intended to require the filing of a proper complaint it would have said so explicitly. Though we must "listen attentively to what a statute says[;][we] must also listen attentively to what it does not say." Kmonk-Suffivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001) (citation omitted). "[I]t is a canon of statutory construction that a court has no power to insert a word into a statute if the legislature has failed to supply it." Wasic Farms, Inc. v. Pa. Labor Rels. Bd., 734 A.2d 487, 490 (Pa. Cmwlth. 1999), affd, 777 A.2d 80 (Pa. 2001); see also Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa. Cmwith. 2004) (we may not insert a word the legislature failed to supply into a statute). As such, we will not insert the requirement of filing a civil complaint into the Law where no such requirement exists. We conclude the demand letter constituted the filing of a proper claim sufficient to trigger the sixty day waiting period under the Law. 2. Good Faith Dispute Defendant next disputes Plaintiffs right to seek special damages on the basis that there exists a good faith contest or dispute of Plaintiffs wage claim. Specifically, Defendant points to the action for injunctive relief it filed against Plaintiff and other former officers of the corporation that is currently pending before the Superior Court. In that action, the parties participated in a lengthy and hotly contested hearing on injunctive relief relating to the control of the Defendant -3- 12-5473 CIVIL TERM Corporation.' Following the hearing, the undersigned ruled in favor of Corporate plaintiff and granted injunctive relief. That decision is currently on appeal to our Superior Court. No doubt, the ultimate resolution of that case will be relevant to the ultimate determination of good faith in this case, but given the procedural posture of both matters, we conclude, for the purposes of the instant preliminary objections, that the injunctive relief case is not relevant to the question of good faith currently before the court. In ruling on preliminary objections all well-pleaded facts and all reasonable inferences that may be drawn from them are accepted as true. Lutz v. Springettsbury Twp., 667 A.2d 251, 253 (Pa. Cmw1th. 1995). Here, Plaintiff has pled that her wages were withheld in bad faith. Further, the question of bad faith is normally a fact question reserved for the jury. Thomas Jefferson University V. Wapner, 903 A.2d 565, 575 (Pa. Super. 2006). Accordingly, at this early stage in the litigation, it is premature for the court to determine whether Defendant's contest of Plaintiffs wage claim was in good faith. B. Quantum Meruit Defendant next seeks dismissal of Count III of Plaintiffs Complaint on the basis that she cannot seek recovery in quantum meruit where she has already affirmatively pled the existence of a written contract. We agree that, ultimately, Plaintiff may not recover damages for both breach of contract and in quantum meruit, however, at this initial stage of ' See Penn Products Corporation, David J. Horick, Douglas C. Horick, Marilyn Snyder Budzynski, Executrix-DBN of the Estate of Maybelle Asper, Deceased, Daniel A. Kuhn, Donna Lee Goff, Lewis G. Kuhn, Carolyn Wagner, Doris 1. Ernst, and Jean M. Horick v. Sandra McCorkel, Gregory R. Swope, Megan Swope, and John Swope, 12-2838 Civil Term, Cumberland County. Hearing held, May 14, 2012. -4- 12-5473 CIVIL TERM litigation, Plaintiff has the right to plead an equitable remedy in the alternative to her contract claim. Further, if Plaintiff had failed to plead an alternative count of unjust enrichment, that remedy would be unavailable to her if she failed to prove the existence of a contract at trial. Birchwood Lakes Community Assn Inc. v. Comis, 442 A.2d 304, 308 (Pa. Super. 1982). Accordingly, this preliminary objection is overruled. C. Failure to Exercise Statutory Remedy Finally, Defendant argues Plaintiff cannot state a claim under the Law as she has failed to exercise the statutory remedy available to her. Specifically, Defendant contends an aggrieved employee seeking to recover special damages under the Law must first pursue a remedy from the Secretary of Labor and Industry. Defendant argues, "Section 260.9a of the [Law], which addresses remedies and penalties, sets forth a detailed procedure for an aggrieved employee or former employee to obtain a remedy through the Secretary of Labor and Industry." Def. Br. at 9. Defendant is correct, but ignores that seeking a remedy through the Secretary is clearly an alternative to a private cause of action. The relevant statute reads: (b) Actions by an employe, labor organization, or party to whom any type of wages is payable to recover unpaid wages and liquidated darngges, may be maintained in any court of competent jurisdiction, by such labor organization, party to whom any type of wages is payable or any one or more employes for and in behalf of himself or themselves .... (c) The employe or group of employes, labor organization or party to whom any type of wages is -5- 12-5473 CIVIL TERM payable may, in the alternative, inform the secretary of the wage claim against an employer or former employer, and the secretary shall, unless the claim appears to be frivolous, immediately notify the employer or former employer of such claim by certified mail. 43 P.S. § 260.9a. The clear language of the statute does not require Plaintiff to exhaust her statutory remedy before commencing a civil action in her own right. Accordingly, this preliminary objection is overruled. Ill. Conclusion For all these reasons, Defendant's Preliminary Objections are overruled in all respects. Defendant shall file an Answer within 20 days. ORDER OF COURT AND NOW, this day of April, 2013, Defendant's Preliminary Objections are OVERRULED in all respects. Defendant shall file an Answer within twenty (20) days. By the Court, Albert H. Masland, J. William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 For Plaintiff Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 For Defendant -6-