HomeMy WebLinkAbout13-0363 IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HARSCO CORPORATION
Plaintiff, :
V. Case No.: 13-363 Civil
JOHN MICHAEL BUNNEY and C,
cz
SARA ANGELA BUNNEY, CIVIL ACTIQ& -7+
Defendants. =x
ANSWER WITH NEW MATTER 5< c
NOW COME DEFENDANTS John Michael Bunney and Sara Agelg .
Bunney, who answer the Complaint in the above-referenced matter and state:
1. Admitted on information and belief.
2. Denied as stated. Defendants John Michael Bunney and Sara Angela
Bunney ("Defendants"), reside at 5038 Pellingham Circle, Enola, PA 17025,
although both are citizens of the United Kingdom.
3. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
4. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
1
5. Denied. To the contrary, Harsco offered Defendant John Michael
Bunney a transfer of employment from a position in the United Kingdom with a
subsidiary of Plaintiff Harsco Corporation ("Harsco") to a position in the United
States, and in a letter to Mr. Bunney dated January 10, 2010, (the "Employment
Offer") offered that, were Mr. Bunney to so relocate, "Harsco would meet all
reasonable costs of your relocation." [A true and correct copy of the Employment
Offer is attached at Exhibit "A" and made a part of this Answer.] Mr. Bunney
accepted said offer and Defendants thereafter relocated to the United States,
incurring certain moving and home sale expenses. By way of further answer,
although Defendants thereafter incurred reasonable costs from their relocation,
Harsco demanded that Defendants execute a promissory note between Defendants
and Harsco reflecting all or some of said reasonable costs of the relocation; the
Amended and Restated Promissory Note (the "Note") was later executed on May
14, 2012.
6. Denied as stated. In or about 2010, Harsco induced Defendant John
Michael Bunney to accept employment from Harsco in the United States on terms
that Harsco "would meet all reasonable costs of[his] relocation." and in so doing,
Harsco induced both Defendants to execute a promissory note, which later became
the Note. Thereafter, Harsco terminated Mr. Bunney's employment on August 1,
2012.
2
7. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
8. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
9. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
COUNT I—BREACH OF WRITTEN AGREEMENT
10. Defendants incorporate Paragraphs I through 9 by reference.
11. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
12. Denied. The averment is a legal conclusion to which no response is
required and is therefore denied.
WHEREFORE, Defendants request that the Court dismiss the Complaint,
and grant judgment in favor of Defendants and against Harsco Corporation, and
award such other further relief to the Defendants as the Court deems just and
proper.
NEW MATTER
13. Defendants incorporate Paragraphs I through 12 by reference.
14. The Complaint fails to state a claim on which relief can be granted.
15. On January 10, 2010, Harsco extended the Employment Offer to
Defendant John Michael Bunney.
16. The Employment Offer included a Transfer and Relocation of a
Current Employee Policy ("Relocation Policy"), a copy of which is attached as
Exhibit IIBII
17. The Repayment section of the Relocation Policy provides that if the
affected employee were to leave Harsco within two years of the date of relocation
(for reasons other than redundancy, ill health, death, or proven wrongful dismissal)
he would be required to repay relocation costs on a prorated basis.
18. Defendant John Michael Bunney relocated to the United States in or
about April 2010, and was employed by Harsco for more than two full years after
his relocation.
19. By remaining employed by Harsco for more than two full years after
his relocation, Defendant John Michael Bunney exceeded the threshold under said
4
Relocation Policy and was thus exempt under said Relocation Policy from the
requirement to repay relocation costs to Harsco.
20. By remaining employed by Harsco for more than two full years after
his relocation and exceeding the threshold employment period stated in the
Relocation Policy, Defendants John Michael Bunney and Sara Angela Bunney
were exempt from the requirement to repay relocation costs to Harsco and thus met
their obligations under the Note.
21. Defendants are not liable to Harsco for any amount of money pursuant
to the Note.
22. The Note was void at the time of Mr. Bunney's termination.
23. To the extent that either or both Defendants is/are liable for any
amount owed pursuant to the Note, which Defendants deny, said liability is offset
by amounts owed by Harsco to Defendants on account of reasonable costs
Defendants incurred from their relocation that were not met by Harsco.
WHEREFORE, Defendants respectfully request that this Honorable Court
dismiss the Complaint, and grant judgment in favor of Defendants John Michael
Bunney and Sara Angela Bunney and against Harsco Corporation, and award such
other further relief to Defendants as the Court deems just and proper.
5
Respectfully submitted,
Date: June 21, 2013 By: Jt; ' �YA
Frank P. Clark, Esquire
CLARK & KREVSKY, LLC
P.O. Box 1254
Camp Hill, PA 17001
(717) 731-8600
(717) 731-4764 (Fax)
Counsel for Defendants
6
VERIFICATION
The undersigned, John Michael Bunney and Sara Angela Bunney, hereby
verify that they are the Defendants in the within matter; that they execute this
Verification on their own behalf; and that the facts stated herein are true and
correct to the best of their knowledge, information and belief and further state that
false statements herein are made subject to the penalties of 18 Pa.C.S. §4904
relating to unsworn falsification to authorities.
Date: 6 /2-//2013 O
John Michael unney
Date:
ra Angela B ey
7
CA*-A4t.PA,0011'USA
TWOV7,117,039,064
f9t,'717-76316424
OM
.Pr.jM46,.MdCdhfid#nfiat
Jatwaty t5.1010
.0 Chase
The A'V.0',n' q0
Zurrey;
Ac. Employmonvoffet-
_On,bdfi -of,Harsc4j wish_1 :bbhfir(nWrvdrbaldff0:6f4rfip
'loy- serif-for the.position.of
.-C.10,"HAts'db WtAls4hd Minerals,:at an
- - y-of$18 `6_7 O. . 1'h 0.1s p a i
ion
you Wiftepoft-diroc ty-to Stott Gerso -'Mi w FieW6rt&. -and vill"be.Iodated In th e
addittgrOo�fhe base salary;mentioned.above,w. .e will-also pro rt d'
our-offer:
�R
You will bo-eligible: 'do m- 0ensation annually as a.pprildprAn't In.1,'e
I
Afihual'incentive T',14p; Rased pp'the achieverx eat,of Ecpnomie,ValUeAdded
of ectivep-and--parsoha[�.o the,target award a4eilabiptp.,you will 1pe�3P*Kq.of
your base . _ ,objectives;, -
69�,tiingr;lo.'f�-th6.'�'2010'Pfan Ybarj'yqfl�amaiimpm:O(Ward 6(.60* %.
v! You Will be.(Migibl'640,participate Harsco%,-Long-,r1 'IncentivelPian, in
appord A
pnp.e--w -rugp,-Whii 11re-smJe-(X.tO,,chanqe. -Y -ft' tdet,.,LTI'
op .Ith �e ptm. ou A
p,6r.tunity..will.b.*e.t-'ataiiiated aspercentage,60w mid-point-:9f your pay.gracte.
!P:The--Cdtnpany will meet all reasonable costs.of your-relocation to_'the U8 in
accordance'v+lit .the'TRAN$5'E.R.AN'D,RELOCATION,O.FA.C:URRENT
EMPLOYEE:Policy; refottridedfnApr Yie repayment-:of
your-these'dostson,14 prorated basis Zhould':yo4 leave.the Company.by y -oW.n
,volition prior-#o O.e�c br
1 . etp of 1. 2041.
Odition I owmde
rthe-tefftdf:,th t.61 n,,'t.h Company wilt dt"d d
up td,:$3-000 WW60dwthecost df,yoq purchasing.Tpplap ent,eljectrical and.em
d other
whjite. Uld be dlialGied jh-rough-ok%n- e relocation.
.goods. 'this,:sho,. �p ses as per-th
Y. bu.'Wil b6 efiffible for health ancivelfare beneffiv,desciibed on the included
Men With.regards.to:vaoation, you wfll.accr6' "2 S`diayt pWryear In-:2010
and 20'days�in-2011
n andbis#6nd4
4.,ko otherbefleifts will apply td-thIs'position.
EXHIBIT
Mr.Michael 8tsnney'
January 26--2040.
'Pag?s 2
H
This position is e.per►nanent; USba$ed'positiori and will become subject.to the
normal provisioris,regarding employment that apply in the US, Hdweveri on an
:interim basis and up,until 31 December 201 1, should the Company elect to
terminate,your employment for ar►y reason rather.than gross niiscorduct, you shall
be paid- morfths'salary ana.any bonds aohieved., Aftetthis date,you shalfTevert
to,the normal U$terms,.
The appropriate passport and visa for.you shall be obtained at the company's expense,:
You will not be permitted to work for Harsco in the United States-until the necessary visa
has been obtained. Attached in Appendix 1 is a checkiist of the details-required.to
process R appropriate Visa application lication'and,you should begirr.collating the necessary;
documents as'soon as`possible.
You will be responsible,fbrronstaOng that yoil comply with all personal tax laws to i!i�hich
you are'>,$ubjedt in..any'country, submit the appropriate°tax documentation by the,required.
dates and settle any taxes due. The:Coinpanyvrill meet the cost of professional advice
arid.assistance from 8DO:.Stoy Hayward in complying with these requir'e'ments for the
2010 calendar year: You::are strongly advised.to maintain a full travel.log to submit.tb
the tact authorities if.required:
.
Unless you have:the prior written approval of the Company, you wil sl.not at anytime.
.during or after the employment divulge to any person or 1potions any confidential,
ltifqrrna#ion relatrtg fo the Company's:business or products, nor will.you publish or cause
to lie published any information whatsoever about the Company's business or products
exoepfias may be required;in the norrrtal case of your duties.
Your employment will continue to be subject to your agreement to be bound by—the
-Harsco Code of Conduct, Conflict of Interest policy, (riternal Control Framework Policy,
Internet Usage Policy and Trust&Cohfidence*Agreement.
fi'leasieconfirm your acceptance of the offer'.and conditions-set out in this letterby, .
signing the attached duplicate ofthis letter and attachments=and returning them to me.
V frul' yours,
G.eraid F.Vinci
VP, Human Resources Americas
cc: Scott'Gerson
paAd Adams
Galdino Claro
:Signed. Date :
Michael.Bunriey
Mr.. Michael Bunhey
January 25 20:'10.
Pagel 3
1ppendt t 1:L1A Visa Cho fit:
1, } detar{eel written descnptir3n of the.:position thetalien wall fiold in_the U-S. This
should include: Duties to be:performed(ir►clude descnption of the special-skills.
needed to perform the:dutles of this'position that the employee M acquired by
vlitue of tt`'is employrrYetit abroad},;Number and types of employees to be supervised:
(If any};.Education and expariieni;ee required:for`the.positton , Salary(maybe stated
per hour,per week, per. month;, or per Year); City and state in which the work will be
performed(supply street address if'different.from company address),
2.
AA led written description of the position the alien currently holds with the
affiliated company,abroad. This shoutd'include .Duties performed'(include
description of the speoiat skills or knowied'ge acquired by the employee as a re's' It of
this employment);,Number and types of employees supervised.(If any), Education.
and:experience required for the position, Salary(may be stated;per=hour, per week,
per'rhonth, or p.et'year).
3. The following Comp9hy information (unless up-to-date information.supp{led within'the
past,.year): Narne.and title of company,official who wit sign the application forms;
Tax ID number, Year established,.current number of employees, annual gross and
net`income figures;Anboai report,.audited financial statements;corporate tax
:returns,,or SEC Form 10-K)K report, Evidence of the corporate. relationship between
the,U.S. cam party and the affiliated company abroad, Address of the affiliated
company abroad(street, city,.Anil country):
4: A brief(one to two paragraph)statement of the reasons why the employee.is'being
transferred to the U.S.
S. A copy of the.employer's letter offering the alien employment.
0. A letter from the affiliated,company:abroid verifying floe al'sen'"s current employment,
data of hire, and positions.
7.. Copy of the alien's passport`(all pagos),and if present in the US-1:or previously
granted nonimmigrant status,copies of his/her most recent 144 card,visa, and all
piton 1-797 approval notices;and;the same documents each:family rnemter wtio`
wilf.accompany the alien to the`U S.
8: R ropy.ofthe alien`s marriage certrate(if married}':and copies of.the birth
certificates of each of the alien's children(if any).
J: Copies of the ali'en's degree certificates, coliage'transcripts, and,current.resume
10 If the alien is currently employed in th'e li:S,, copies o#.his/her'2most recent
paystubs.
i l.,
The alien`s social securitynumber'{if any)and home address (U.S. or foreign).
Mr.Michael Bunne}i
January 25; 2010
Pago 4,
.Apt*rfdIz 2--Relocat#on'T a
e relocation will be in accordance with the TRANSr5Fk,�Ni)'RELOCATION
OF A,C' RR5NT EMPLOYEE policy dated March 3; 1:998,.with.the
'following exceptions.
Section 1,B.,3c— It is expected that terrtpbr— living a?ccommodations will
be required for a Oeriod of mid Aprii'throughAMe':August,
Section 1, B td —One or two trips:forthe omployee, spouse; and their
children for the-purpose of sd.lecti►lg a new°residence
Section.It,A,,1. —All expenses wi11 require the approval of the Harsco:Clo and
the Harsco M6tals C50
REPA MENT:_Sttould you leave the Company's employm'ont for.any reason other,'
than'redundancy, ill'healthy death"r„n service or proven wrongful dismissaf(actual or
constr�scfive),iNitl11r4 years front the date of relpoebon,you vv ill required to
;repay the+costs-set:.out.above:,which are'bor ie by the Company, orl a prorated
basis.
mar—=
ACCOUNTING AND GENERAL MANUAL
TITLE: TRANSFER AND RELOCATION OF A CURRENT EMPLOYEE
ISSUE DATE: 03-30-98
EFFECTIVE DATE: 03-30-98
REPLACES: 12-07-93
ISSUED BY:PCC
AUTHORIZED BY: DCH
I. POLICY:
A. Statement
When relocation of existing employees is initiated by the company,
certain costs of moving the employee and his family will be bome
by the company. In addition, the company will compensate the
employee for reasonable expenses directly related to the
relocation.
B. Definitions
I JMnsfe
A transfer is any reassignment within the company which
necessitates a change in residence, except for those
reassignments which together comprise a group relocation.
Each group relocation will be the subject of a special
separate policy directive.
2. Costs of Moving
The costs of moving which will be bome by the company
consist of.
a. The actual charge for transportation of household
effects and personal effects, charges for packing and
charges for In-transit storage.These arrangements
EXHIBIT
must be made by or cleared through the purchasing
department at the new location.
b. Transportation, meals, and lodging charges incurred
by the employee and his family while en route to the
new location.
3. Related Expenses
Related expenses might include but are not limited to:
a. Living expenses of the employee at the new location if
he is required to start work there before his family Is
moved.
b. Trips made by the employee between the old and
new locations before his family is moved.
c. Certain living expenses of the employee and his
family, not exceeding 90 days, if they are required to
vacate their house before the closing date on a house
at the new location.
d. One or two trips by the employee's spouse for the
purpose of selecting living quarters at the new
location.
e. Expense of disconnecting and connecting appliances,
telephones and similar services.
f. Loss or penalty on cancellation of lease on a rented
house or apartment.
g. Mortgage interest, insurance and taxes on the
vacated house from the closing date on a house at
the new location to the dosing date on the vacated
house for a period not exceeding six months.
h. Brokerage, advertising and normal closing expenses
incident to selling the employee's house at his present
location. Normal closing costs are items such as legal
fees and transfer taxes.
I. Normal closing expenses incident to the purchase of
a house at his new location.
4. Home Equity
Harsco will not buy the home nor pay the loss, if any, on the
sale of the home of transferred employees.
II. PROCEDURE
A. Approvals
1. All arrangements as to nature and amount of expenses to be
covered for reimbursement by the company on behalf of the
transferred employee must be approved by the Corporate
Chief Operating Officer, or the Corporate Chief Financial
Officer.
2. Payment(s)to the transferred employee shall be made by
the Division or company to which the employee is
transferred on the basis of the above approvals.
All such payments shall be adequately supported by
invoices, receipts or travel expense reports.
3. The costs of moving shall be paid by the company only If the
moving arrangements have been made by or cleared
B. Reimbu rsement through the purchasing department at the new location.
of Moving Expenses:
1. All payments on behalf of the transferred employee and all
reimbursements to the employee for moving expenses,
either directly or indirectly, should be included in the
employee's gross income as compensation for services and
are subject to withholding, excluding, however, certain
expenses not subject to reporting (see b. below).
Accordingly, the employee shall also be compensated
("grossed-up")for applicable federal, state and/or foreign
taxes on those nondeductible moving expenses subject to
tax.
a. The gross-up for federal purposes shall be based on
the employees "tentative"taxable income using the
top marginal tax rate applicable to the employee's
"tentative"taxable income.
b. "Tentative"taxable income shall be based on the
employee's annual compensation as an employee of
Harsco Corporation or division, less the appropriate
exemptions applicable to the employee including
dependents, and less the applicable standard
deduction used by taxpayers not itemizing
deductions. Annual compensation shall include but
not limited to, base salary, incentive bonuses,
commissions, etc., paid in the year that the expenses
are Included in the employees income.
Example:
Annual Compensation
Exemption Allowances
Standard Deduction
"Tentative" Taxable Income
c. The marginal tax rate shall be the top rate applicable
to the employee's "tentative" taxable income.
d. The gross-up may be computed according to the
following formula:
I -marginal tax rate=gross-up factor
Nondeductible moving expenses + gross-up factor
total income including gross-up
Total income including gross-up- nondeductible
moving expenses =gross-up
Example:
1 - .28 = .72
$50,000+ -72=$69,444-$50,000=$19,444
Proof.
Nondeductible moving expenses $50,000
Gross-up 19,444
Total $69,444
Marginal tax rate .28
Tax $_19.444
2. Moving expenses not includable in gross income include the
following:
a. Expenses of moving household goods and personal
effects.
b. Transportation and lodging charges incurred by the
employee and his family while en route to the new
location. (Does not include meals.)
3. Nondeductible expenses to be included in the employee's
gross income include all other costs not described in 2a and
2b above.
4. In the event that the reimbursed expenses are subject to tax
by a state or other jurisdiction, such as a foreign country,
these taxes should also be included in the "gross-up"
computation.
5. All nondeductible expenses including the amount of"gross-
up"are includable in the employee's gross income and are
subject to withholding of FICA and applicable federal, state,
local or foreign taxes. This Income and related taxes are to
be included on the employee's Form W-2 for the year in
which they are paid.
C. Tern rare Loan for Purchase of Home
1. The company may lend to the transferred employee up to
80% of his expected net proceeds from the sale of his home
if he is actively attempting to sell his home.
2. It will be the responsibility of the Division President for the
new location to consider the granting of a temporary loan, if
requested.All such loan requests must be submitted to the
Corporate Office for approval by the Corporate Chief
Operating Officer, and the Corporate Chief Financial Officer
or Treasurer. The loan will be evidenced by a promissory
note, as specified in the Corporate policy"Loans to
Employees".
D. Accounting Distribution
I. Costs borne by the company will be charged to the
employee's new department at his new location, to account
number 74, Traveling and Entertainment.
2. Advances or loans to the employee will be charged to
account number 123, Employee Accounts Receivable.
E. Special Circumstances
In certain cases, payments other than those outlined herein may be
justified because of special circumstances. No such arrangements
should be discussed with the employee prior to approval by the
Corporate Chief Operating Officer or the Corporate Chief Financial
Officer.
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the ANSWER WITH
NEW MATTER in the above-captioned matter upon the below listed individual(s)
by causing same to be deposited in the United States mail, first class postage
prepaid at Camp Hill, Cumberland County, Pennsylvania, addressed as follows:
Clayton W. Davidson
McNEES WALLACE & NUIUCK LLC
100 Pine Street
PO Box 1166
Harrisburg PA 17108-1166
Date: June 21, 2013 ,
By: J
Frank P. Clark, Esquire
CLARK & KREVSKY, LLC
P.O. Box 1254
Camp Hill, PA 17001
(717) 731-8600
(717) 731-4764 (Fax)
Counsel for Defendants