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HomeMy WebLinkAbout13-0543JEFFREY NEWBURY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2013- ~ j CIVIL TERM . , F. ~ P~.~ ~_1 _ ~ ~~ ~ ALEX R. SZELES, INC. AND CIVIL ACTION-LAW '°'-~' `~ ~! BRIAN J. SZELES, PRESIDENT ~ `~ ~ ~ ~`~ -~,` OF ALEX R. SZELES, INC., :~- ~ cn;' t,, -r, ;:r, ~;~~`.; Defendants `{'~~- ° ~~ ' -^' c-1 ' - ~ -~ :? -~ ~ t- .~~_ _ _ .L ~~ / +..~~ L.. '~t_ NOTICE =' rL _ c.f 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 an 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. 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 Street Carlisle, Pennsylvania 17013 (717) 249-3166 C~/9~~~ ~~ ~?~~o( JEFFREY NEWBURY, Plaintiff v. ALEX R. SZELES, INC. AND BRIAN J. SZELES, PRESIDENT OF ALEX R. SZELES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2013- CIVIL TERM CIVIL ACTION-I~AW COMPLAINT AND NOW, comes Plaintiff .Ieffrey Newbury ("Plaintiff'), by and through his attorneys, Baric Scherer LLC, and files this Complaint against Defendant Alex R. Szeles, Inc. and Brian J. Szeles, President of Alex R. Szeles, Inc. (collectively "Defendants"), and in support thereof states as follows: 1. Plaintiff is Jeffrey Newbury, residing at 4182 Nantucket Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant Alex R. Szeles, Inc. ("Szeles Inc.") is a Pennsylvania corporation with its registered office address at 945 East Park Drive, Suite 101, Harrisburg, Dauphin County, Pennsylvania 17111. 3. Defendant Szeles Inc. is a business engaged in fire restoration, building, and home improvements. 4. Defendant Brian J. Szeles ("Brian Szeles") is President of Alex R. Szeles, Inc., and resides at 6045 Lyters Lane, Harrisburg, Dauphin County, Pennsylvania 17111-4620. 5. Plaintiff began his employment at Szeles Inc. on January 10, 2011, as Project Manager. 6. Plaintiff was hired by Defendant Brian Szeles, acting for Szeles Inc. 7. At the time of hiring, Defendant Brian Szeles informed Plaintiff that he would be paid a base salary of $47,500, plus commissions, and receive medical insurance and use of a company vehicle. 8. In March 201 1, Plaintiff received a raise of $1,000, to be added as part of his base salary. 9. It was the practice of Defendant Szeles Inc. to pay commissions to employees six months after the customer had paid the related bill in full, although Plaintiff was not informed of this practice at the time of hire. 10. When earned, Plaintiff was to receive commissions quarterly throughout the year. 11. Furthermore, commissions were based on the company making a 16% profit on the related job; where a job earned less than 12% profit, no commission was given. 12. Under the company's six-month waiting policy, Plaintiff was due to receive his first commission check on September 1, 2011. 13. Plaintiff did not receive his first commission payment until December 13, 2011. 14. The December 13, 2011 commission payment was for $1,462.09 (gross). 15. Under the company's six-month waiting policy, Plaintiff was due to receive his second commission check on January 1, 2012, and further commissions were to be paid to Plaintiff each quarter of the calendar year. 16. To date, Plaintiff has not received this second commission check or any further commission. payments. 17. Plaintiff was "laid off' on February 3, 2012. 18. The duration for the "layoff' was never specified to Plaintiff and was effectively a termination of employment. 19. When Plaintiff asked Defendant Brian Szeles if Plaintiff for payment of his commissions following the termination, Defendant Brian Szeles responded that if Szeles Inc. started to get busy, he would bring Plaintiff back to work, and then Plaintiff would receive his commissions over time; however, in the case that Plaintiff would not be brought back to work, he would not receive commissions because, as Defendant Brian Szeles stated, "I've probably lost money on you." 20. Page 5 of the Employee Handbook (attached as "Exhibit A") states, Immediately upon any resignation, lay off, termination, or leave of absence (including medical and/or Workers' Compensation leave), ALL benefits, including health and life insurance, vacation and sick leave, bonuses and commissions and accumulation of service time are terminated and/or suspended and will remain terminated and/or suspended until the employee is back to work for one complete month. All policies and benefits are reinstated effective the first day of the month. 21. The above-quoted provision of the Employee Handbook only applies prospectively and does not apply to commissions earned prior to termination. COUNT I -WAGE PAYMENT AND COLLECTION LAW 43 P.S. & 260.1 et seq. JEFFREY NEWBURY V. ALEX R. SZELES, INC. AND BRIAN J. SZELES, PRESIDENT OF ALEX R. SZELES, INC. 22. Paragraphs 1-21 are incorporated by reference as if set forth fully herein. 23. Count I is brought pursuant to the Wage Payments and Collection Act, 43 P.S. § 260.1 et seq., which is known as the "Wage Payment and Collection Law" ("WPCL") 24. Under § 260.3(a) of the WPCL, wages other than fringe benefits and wage supplements must be paid, if not specified in a written employment contract, "within the standard time lapse customary in the trade or within 15 days from the end of such pay period." 25. No written employment contract exists between the parties. 26. Under § 260.3(b) of the WPCL, [e]very employer who by agreement ...agrees to pay ...wage supplements, must ...pay ...the ...wage supplements ...within 10 days after such payments are required to be made directly to the employee, or within 60 days of the date when proper claim was filed by the employee in situations where no required time for payment is specified. 27. Regardless of whether the commissions owed to Plaintiff are "wages" or "wage supplements," Defendant Szeles Inc. is in violation of the WPCL, not having paid, as of the date of this complaint, the commissions due to Plaintiff on January 1, 2012, or thereafter. 28. Additionally, under § 260.5(a) of the WPCL, where an employee is terminated, "wages or compensation earned shall. become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable." 29. Under § 260.9a of the WPCL, an employee to whom wages are owed may bring suit to recover unpaid wages, liquidated damages, and reasonable attorneys' fees. 30. Under § 260.10 of the WPCL, [w]here wages remain unpaid for thirty days beyond the regularly scheduled payday ...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, the employee 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. 31. Plaintiff does not have access to all project reports and related information and therefore is unable to determine with specificity what commissions are due to him; however, Plaintiff believes such commissions may rise to, or exceed, $20,000.00. 32. Under § 260.2a of the WPCL, an "employer" includes "any agent or officer of [a corporation] employing any person in this Commonwealth." 33. Brian Szeles, President of Alex R. Szeles, Inc., who both hired Plaintiff and terminated Plaintiff s employment, is an "employer" under the WPCL and is therefore jointly and severally liable with Szeles Inc. for any damages recoverable under this Count. WHEREFORE, Plaintiff demands the entry of judgment in his favor and against Defendants for the amount of commissions due to him, liquidated damages of 25%, reasonable attorneys' fees, and such other relief as this Court deems just and proper. COUNT II -BREACH OF CONTRACT JEFFREY NEWBURY V. ALEX R. SZELES, INC. 34. Paragraphs 1-33 are incorporated by reference as if set forth fully herein. 35. In exchange for Plaintiff s service as Project Manager, Szeles Inc. agreed to pay Plaintiff a base salary of $47,500.00 and commissions; Szeles Inc. also agreed to provide medical insurance and use of a company vehicle. 36. This agreement constitutes a contract. 37. Plaintiff performed his duties as Project Manager until the time of his termination. 38. Plaintiff has, to date, not been paid any commission due on January 1, 2012, or thereafter. 39. Szeles Inc.'s failure to pay Plaintiff the commission to which he is entitled has caused him financial harm. 40. Szeles Inc.'s failure to pay Plaintiff this commission constitutes a breach of contract, for which Plaintiff may recover damages. WHEREFORE, Plaintiff demands the entry of judgment in his favor and against Defendant Szeles Inc. in the amount of his unpaid commissions, and such other relief as this Court deems just and proper. COUNT III -UNJUST ENRICHMENT JEFFREY NEWBURY V. ALEX R. SZELES, INC. 41. Paragraphs 1-40 are incorporated by reference as if set forth fully herein. 42. By providing his services as Project Manager to Defendant Szeles Inc., Plaintiff conferred a valuable benefit on said Defendant. 43. Defendant Szeles Inc. accepted the benefit conferred by Plaintiff. 44. Defendant Szeles Inc. understood that Plaintiff expected to be paid a base salary and commissions in exchange for his services as Project Manager. 45. Despite demand, Defendant Szeles Inc. has refused to pay Plaintiff for the benefits it received from Plaintiff. 46. Defendant Szeles Inc.'s conduct was neither privileged nor justified. 47. By reason of the foregoing, Defendant Szeles Inc. has wrongfully and unjustly secured material benefit from Plaintiff in such a manner that it would be unconscionable for Defendant to retain those benefits without just compensation. 48. Plaintiff is entitled to the reasonable value of his labor provided to Defendant Szeles Inc., for which Plaintiff has not been compensated, in the amount of his unpaid commissions due on January 1, 2012, and thereafter. WHEREFORE, Plaintiff demands the entry of judgment in his favor and against Defendant Szeles Inc. in the amount of his unpaid commissions, plus attorneys' fees, and such other relief as this Court deems just and proper. Respectfully submitted, BARIC SCHERER LLC Dated: January 30, 2013 MicH~elbA. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff 01/28/2013 16:31 7177742267 PAGE 07/08 VERIFICATION Z verify that the statements made in this Complaint are true and correct 1 uztdezstand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4404, relating to unsworxz falsification to authorities. Date: ~ ~ ~ Immediately upon any resignation, lay off, termination, or leave of absence (including medical and/or Workers' Compensation leave), ALL benefits, including health and life insurance, vacation and sick leave, bonuses and commissions and accumulation of service time aze terminated and/or suspended and will remain terminated and/or suspended until the employee is back to work for one complete month. All policies and benefits are reinstated effective the first day of the month. ~ Immediately upon any resignation or termination, company equipment and material must be returned. Any outstanding expenses must be taken care of before receiving the last paycheck. ~ As health insurance coverage is paid in advance and effective through the end of the month, you will be responsible for payment of any coverage that remains in effect following resignation or termination. The cost will be prorated and subtracted from your last paycheck. The amount will be calculated using the monthly cost of the coverage and the number of days remaining in the month following your last day of employment. Medical cards need to be returned to the office. COBRA SERV will contact you with details about continuing your coverage through them as the same cost that is paid by the employer. ~ Vacation time can only be used in increments of four or eight hours (full or half day) and will not be carried over from year to year. Any unused time remaining at the end of the year will be lost. Vacation time must be scheduled in advance and approved by Brian J. Szeles. Submit a written request to the office for time off. Any unused vacation is forfeited upon termination of employment. ~ Sick leave can only be used in increments of four or eight hours (full or half day) and will not be carried over from year to year. However, any unused sick time remaining at the end of the year will be traded in at a value of one-half for use as either vacation or sick leave in the following year. For example, if you have three sick days left over they will be carried over to the following year as 1 %2 days of comp time. Any unused sick leave is forfeited upon termination of employment. c It is strongly discouraged to take more than your annual allowance for vacation or sick leave, unless approved ahead of time by Mr. Szeles. If this situation would occur, please be advised that consequences will follow. You will be responsible for your health care costs on those days used beyond your allowance. "EXHIBIT A" 5 i JEFFREY NEWBURY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2013-543 CIVIL TERM ALEX R. SZELES, INC. AND CIVIL ACTION-LAW BRIAN J. SZELES, PRESIDENT OF ALEX R. SZELES, INC., Defendants PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned action as satisfied and discontinued. Respectfully submitted, BARIC SCHERER LLC c a A. Scherer, Esquire I.D. # 61974 Date: April 23, 2013 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Plaintiff zg c< -�,rn' ---4'Q C� i CERTIFICATE OF SERVICE I hereby certify that on April 24, 2013, I, Jennifer S. Lindsay, secretary at Baric Scherer, did serve a copy of the Praecipe To Discontinue, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Samuel Andes, Esquire P.O. Box 168 Lemoyne, Pennsylvania 17043 J n ife O.'Linds6�