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HomeMy WebLinkAbout13-6840 Supreme Court of Pennsylvania Court of Common Pleas For Prothonotary Use Only: Civil Cover Sheet Docket No: Cumberland County. i 3 , �� The information collected on this form is used solely court adn7inistration purposes. This form does not .supplement or replace the filing al7d .s( - vi:e of pleadll7g.s or other papel ".s a.s i equired bl- laW or Titles of coi(1 "t. Commencement of Action: S Q Complaint x❑ Writ of Summons ❑ Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Joseph Ascoli NAPA Transportation, Inc. Dollar Amount Requested: ❑within arbitration limits I Are money damages requested? Yes El No (check one) ❑x outside arbitration limits O N Is this a Class Action Suit? ❑ Yes El No Is this an MDJAppeal? ❑ Yes Q No A Name of Plaintiff /Appellant's Attorney: Joshua S. Bovette ❑ Check here if you have no attorney- (are a Self - Represented J Fro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional ❑ Buyer Plaintiff Administrative Agencies El Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections . ❑ Nuisance Dept. of Transportation S E] Premises Liability B Statutory. Appeal: Other ❑ Product Liability (does not include E mass tort) El Employment Dispute: ❑ Slander/Libel/ Defamation Discrimination C ❑ Other: Employment Dispute: Other ❑ Zoning Board Breach of employment T contract Other: I ❑ Other: O MASS TORT ❑ Asbestos N ❑ Tobacco ❑ Toxic Tort - DES _ ❑ Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Other: El Ejectment ❑Common Law /Statutory Arbitration B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ❑ Ground Rent Mandamus ❑ Landlord/Tenant Dispute H Non - Domestic Relations El Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partition ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: ❑ Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Plaintiff(s) & Address(es) JOSEPH ASCOLI 446 Waterleaf Court Mechanicsburg, PA 17050 Case No. Civil Term vs. Civil Action Defendant(s) & Address(es) NAPA TRANSPORTATION, INC. 4800 E. Trindle Road Mechanicsburg, PA 17050 ; c. C..• M PRAECIPE FOR WRIT OF SUMMONS �u CO C) ` -. --i C: LD TO THE PROTHONOTARY /CLERK OF SAID COURT: -� Issue summons in the above case> Ca Writ of Summons shall be issued and forwarded tofflgjj&j=tSneriI f. lease Circle choice crt " Date : 11115/13 Signature of Attorney Print Name: Joshua S. Boyette Address: 1878 Marlton Pike East, Suite 10 Cherry Hill, NJ 08003 Telephone #: 856- 685 -7420 Supreme Court ID Number: 309863 WRIT OF SUMMONS TO: NAPA Transportation, Inc. YOU ARE NOTIFIED THAT THE ABOVE -NAMED PLAINTIFF(S) H AVEGqMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division $ �� Date Deputy 1 a% ,5 163. s Richard S. Swartz, Esq. t+clyJ Joshua S. Boyette, Esq. 2 5 ' SWARTZ SWIDLER,LLC 00tv,Er"?/ 4,,� : -4 1878 Marlton Pike East, Ste. 10 r E NtjS 111 L1COW- Cherry 1 Hill, NJ 08003 ! Phone: (856) 685-7420 Fax: (856) 685-7417 Attorneys for Plaintiff JOSEPH ASCOLI 446 Waterleaf Court COURT OF COMMON PLEAS Mechanicsburg, PA 17050 ; OF CUMBERLAND COUNTY Plaintiff, : DOCKET NO.: 13-6840 v. COMPLAINT AND JURY DEMAND NAPA TRANSPORTATION, INC. 4800 E. Trindle Road Mechanicsburg, PA 17050 CIVIL ACTION COMPLAINT Plaintiff Joseph Ascoli (hereinafter "Plaintiff'), by and through his undersigned counsel, hereby avers as follows against NAPA Transportation, Inc. (hereinafter"Defendant"). INTRODUCTION 1. This action arises out of Defendant's breach of its employment agreement with Plaintiff to employ Plaintiff continuously for a period of. 5 years. This action arises out of Defendant's prior termination of Plaintiff in April 2012. After Plaintiff was terminated without warning, Plaintiff was able to find a superior position paying more money in Ohio. However, Defendant, suffering from acute seller's remorse, began an aggressive campaign to rehire Plaintiff. Despite Plaintiff's initial reluctance to leave a new employer for the old employer that had just terminated him, Plaintiff was won over by Defendant's insistence and reluctantly agreed i to return to Defendant in exchange for a promise of job security in the form,of a five year employment contract. Defendant agreed, and entered into a five year employment contract with Plaintiff. Nevertheless, fifteen months later, in October 2013, Defendant again decided to terminate Plaintiff despite the existence of the written agreement. The applicable employment agreement contained no provision allowing for Defendant to terminate Plaintiffs employment. Furthermore, there is no evidence Plaintiff provided Defendant any cause whatsoever for his termination. Accordingly, Defendant is liable to Plaintiff for the damages he has and will continue to accrue as a result of Defendant's breach. PARTIES 2. The foregoing paragraphs are incorporated herein as if set forth in their entirety. 3. Plaintiff is an adult individual with an address as set forth in the caption. 4. Defendant conducts business within the commonwealth of Pennsylvania at the address set forth above in the caption. 5. At all times relevant herein, Defendants acted by and through its agents, servants and employees, each of whom acted at all times relevant herein in the course and scope of their employment with and for Defendants. FACTUAL BACKGROUND 6. The forgoing paragraphs are incorporated herein as if set forth in their entirety. 7. Defendant is a trucking and transportation company with its principal office in Mechanicsburg, PA. 8. Plaintiff was employed by Defendant during two separate periods of employment. 9. Plaintiff was most recently employed by Defendant at Defendant's Mechanicsburg location from on or about July 9, 2012, until on or about October 25, 2013. 10. Plaintiffs most recent position with Defendant was Planning/Operations Manager. 11. Prior to his most recent employment by Defendant, Plaintiff was previously employed by Defendant at Defendant's Mechanicsburg location from on or about May 18, 2009, until he was terminated on April 4, 2012. 12. During his first period of employment with Defendant, Plaintiffs position was Planning/Operations Manager. 13. At the time of his April 2012 termination, Defendant told Plaintiff that he was being terminated because some driver managers had lodged complaints that Plaintiffs work expectations of them were too high. 14. Plaintiffs final salary at Defendant as of April 2012 was approximately $89,000, with full medical benefits for Plaintiff s family. 15. As a result of his April 2012 termination, Plaintiff was forced to sell his house. 16. After his April 2012 termination, Plaintiff found another.position in or around " May 2012 in Findley, Ohio, paying an annual salary of approximately $95,000, a company car, and full medical benefits for Plaintiff s family. 11. During this new. employment, Plaintiff lived in Ohio during the week and commuted home to Pennsylvania on weekends to see his family, who were remaining in Pennsylvania until the sale of Plaintiffs house closed. 18. After Plaintiff had been working at his new employment for approximately three weeks, Defendant's owner and President, Ronald Accomando, contacted Plaintiff and asked Plaintiff to meet with him the next time he returned to Pennsylvania. 19. That weekend, Plaintiff met with Ronald Accomando in Pennsylvania. 20. During this meeting, Ronald Accomando asked Plaintiff to return to his.former job with Defendant at its Mechanicsburg, Pennsylvania location. 21. In response, Plaintiff told Ronald Accomando he wished to consider the offer. 22. The following day, Plaintiff told Ronald Accomando that he did not wish to be reemployed by Defendant. 23. Approximately a week later, Plaintiff was contacted by Nicholas Accomando, the son of Ronald and General Manager of Defendant, who asked Plaintiff to meet with him the next time Plaintiff returned to Pennsylvania. 24. That weekend, Plaintiff met with Nicholas Accomando. 25. During this meeting, Nicholas Accomando again asked Plaintiff to return to Defendant's employment in Mechanicsburg, Pennsylvania. 26. Plaintiff told Nicholas Accomando that he would think about the offer. 27. Approximately one or two days later, Plaintiff contacted Nicholas Accomando and told him that he appreciated the offer, but did not wish to be reemployed by Defendant. 28. Subsequently, Ronald Accomando contacted Plaintiff again,.and asked Plaintiff to reconsider the offer_ of reemployment by Defendant, and to meet with him one more time. the next time Plaintiff was in Pennsylvania. 29. That weekend, Plaintiff went to Defendant's location, and met with Nicholas Accomando, and explained that Plaintiff did not feel that he could come back to Defendant's employment because he had been terminated, and could not ensure that he would not be terminated again. 30. That following week, Ronald Accomando contacted Plaintiff and told Plaintiff that Defendant wanted to reemploy Plaintiff, that Ronald Accomando did not want to take no for an answer, and asked Plaintiff what it, would take for Plaintiff to return to Defendant's employment. 31. Plaintiff responded that he would return if Defendant matched his salary at his new position, provided full medical benefits, and gave Plaintiff an employment contract for five years. 32. Ronald Accomando agreed to these terms and told Plaintiff to come to Defendant's location next time he was in Pennsylvania to sign the agreement. 33. Subsequently, on or around June 29, 2012, Plaintiff went to Defendant's location, met with Ronald and Nicholas Accomando, and signed an Employment Agreement with Defendant memorializing the terms of Defendant's employment agreement with Plaintiff. 34. Accordingly, on or about June 29, 2012, Defendant entered into a contractual agreement regarding Plaintiff's new. employment. See Employment.Agreement, attached hereto as "Exhibit A." 35. The Employment Agreement states that Plaintiff will be employed as Defendant's "Planning/Operations Manager."See Exhibit A. 36. Furthermore, the Employment Agreement states that Plaintiff will. receive $95,000 salary. See Exhibit A. 37. Furthermore, the Employment Agreement states that Defendant would "continually employ" Plaintiff"for at least 60 consecutive months." See Exhibit A (emphasis in the original). 38. The Employment Agreement does not provide any terms or conditions regarding any events which would permit Defendant to terminate the Agreement or Plaintiff's employment. See Exhibit A. 39. During the course of Plaintiff's second period of employment until his termination, Plaintiff was never provided any verbal or written discipline by Defendant. 40. During the course of Plaintiffs second period of employment. until his termination, Plaintiffs only performance review was positive. 41. In or around August 2013, in recognition of the fine job that Plaintiff was doing, Defendant gave Plaintiff a 2% increase in his annual compensation. 42. In or around October 25, 2013, Defendant terminated Plaintiffs employment without any prior warning. 43. On information and belief, Defendant's agents told employees that Plaintiff had been terminated because Defendants' agents wished to make a "culture change" and take the company in a"different direction." 44. As Defendant agreed to employ Plaintiff for sixty (60) continuous months and instead only employed Plaintiff for fifteen (15) continuous months, Defendant breached its Employment Agreement with Plaintiff. COUNT Breach of Contract 45. The foregoing paragraphs are incorporated herein as if set forth in their entirety. 46. Defendant and Plaintiff entered into an employment agreement on or about June 29, 2012. See Exhibit A. 47. Pursuant to the Agreement, Plaintiff was to be paid a salary of$95,000 per year. 48. Pursuant to the Agreement, Defendant was to "continually" employ Plaintiff for at least 60 consecutive months. 49. Defendants fired Plaintiff on October 15, 2013, after only 15 months of Plaintiffs continual and consecutive employment. 50. Defendants were not permitted, under the contract, to terminate Plaintiffs employment until 60 months after Plaintiff s start date, i.e., July 2017. 51. Plaintiff has suffered and continues to suffer damages as a result of Defendant's breach. COUNT II Promissory.Estoppel/Reliance (Plead in the Alternative to Count I) 52. The foregoing paragraphs are incorporated herein as if set forth in their entirety. 53. Defendant's agents induced Plaintiff to leave his employment to return Defendant's employment by promising Plaintiff that Defendant would employ Plaintiff for five years into the future. 54. Plaintiff left his employment in Ohio as a result of Defendant's promise to continually employ Plaintiff for five years into.the future. 55. Had Defendant's agents not promised Plaintiff that Defendant would employ Plaintiff for five years into the future, Plaintiff would still be employed by his employer in Ohio. 56. Accordingly, as a result of Defendant's actions, Plaintiff has suffered and continues to suffer damages. WHEREFORE,Plaintiff prays that this Court enter an Order providing that: A. Defendants are to compensate Plaintiff, reimburse Plaintiff, and/or otherwise make Plaintiff whole for any and all pay and benefits Plaintiff would have received had it not been for Defendants' illegal actions, including but not limited to past lost earnings, future lost earnings, salary, pay increase,pain and suffering damages,punitive damages,bonuses, medical and other benefits, training, promotions, pension, and seniority. Plaintiff should be accorded those benefits illegally withheld from the date Defendants' fired Plaintiff, until the date of verdict. a B. Plaintiff is to be accorded any and all other equitable and legal relief as the Court deems appropriate; C. Plaintiff is to be awarded the costs and expenses of this action, prejudgment interest, and reasonable attorney's fees as provided by applicable state law; D. Plaintiffs claims are to receive a trial by jury to the extent allowed by applicable law. Respectfully Submitted, J ua S. Boyette, Esq. Richard S. Swartz, Esq. SWARTZ SWIDLER, LLC 1878 Marlton Pike East, Ste. 10 Cherry Hill,NJ 08003 Phone: (856) 685-7420 Fax: (856) 685-7417 Date: November.15,2013 VERIFICATION I, Joseph Ascoli, Plaintiff in this matter,hereby state that the facts above set for are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able to prove the same at a hearing held in this matter. I .understand that the statements herein are made subject to the penalties of 18 Pa. C.S. 5 4904 (relating to sworn and unsworn statements). Dated on this day of November,2013. Signed: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA Joseph Ascoli Plaintiff vs NAPA Transportation, Inc. Defendant NOTICE TO DEFEND 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH 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 REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE,PA 17013 1-800-990-9108 717-249-3166 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson y,t j RUTtsOIL , Sheriff of ellMbre �xxxxtr Jody S Smith `;±,i3 OF' P , Chief Deputy `_ t . CUMBERLAND t�l c.'i�E Y Richard W Stewart OF TWE 'PENNSYLVANIA PENNSYLVANIA Solicitor OFF tC $t+c IF€ Joseph Patrick Ascoli vs. Case Number Napa Transportation, Inc. 2013-6840 SHERIFF'S RETURN OF SERVICE 11/21/2013 11:25 AM- Deputy Shawn Gutshall, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Joe Dennison-CFO,who accepted as"Adult Person in Charge"for Napa Transportation, Inc. at 4800 E-st Trindle Road, Hampden Township, Mechanicsburg, PA 17055. ` "'GUTSHAL , DEPUTY SHERIFF COST: $39.30 SO ANSWERS, November 22, 2013 RONN?R ANDERSON, SHERIFF {c)County-Suite Sheriff:Teieosoff.'r.c. Y Matthew E.Hamlin,Esquire PERSUN&HEIM,P.C. 3 DEC _6 PH 2. 5 3 P.O.Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg,PA 17055-0659 CUMBERLAND COUNTY g PENNSYLVI�NIA (717)620-2440-Phone PENNSYLVANIA' (717)620-2442—Fax mehamlin@i)ersunheim.com JOSEPH ASCOLI, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. Case No. 13-6840 Civil Term NAPA TRANSPORTATION, INC., Defendant. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant,NAPA Transportation, Inc., in the above-captioned action. PERSUN & HEIM, P.C. By: Naatud E l�laa,QrM Makthew E. HUnlin, Esquire Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717).620-2440 - Phone (717) 620-2442 - Fax Attorneys for Defendant, NAPA Transportation, Inc. Date: December 5, 2013 CERTIFICATE OF SERVICE I, Matthew E. Hamlin, Esquire, hereby certify that I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure,by depositing a copy of the same in the United States Mail at Mechanicsburg, Pennsylvania, with first-class postage, prepaid, as follows: Joshua S. Boyette, Esquire 1878 Marlton Pike East, Suite 10 Cherry Hill,NJ 08003 PERSUN & HEIM, P.C. By: M os,r 441 414y& Mat ew E. H&�lin, Esquire Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620-2440 - Phone (717) 620-2442 - Fax Attorneys for Defendant, NAPA Transportation, Inc. Date: December 5, 2013 36052v1 Matthew E.Hamlin,Esquire PERSUN&HEIM,P.C. �� .1 ,J �' '. J P.O.Box 659 1700 Bent Creek Boulevard,Suite 160 CUMBERLAND c o U v Mechanicsburg,PA 17055-0659 PE ,N j (717)620-2440—Phone (717)620-2442—Fax mehamlinAp ersunheim.c om JOSEPH ASCOLI, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA v. • : Case No. 13-6840 Civil Term NAPA TRANSPORTATION, INC., Defendant. • NOTICE TO PLEAD TO: JOSEPH ASCOLI Joshua S. Boyette, Esq. Richard S. Swartz, Esq. Swartz Swidler, LLC 1878 Marlton Pike East, Suite 10 Cherry Hill,NJ 08003 You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty(20) days from service hereof or a judgment may be entered against you. PERSUN&HEIM, P.C. By: Matthew E. Hamlin, quire Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620-2440 - Phone (717) 620-2442 - Fax Attorneys for Defendant, NAPA Transportation, Inc. Date: January 14, 2014 , Matthew E.Hamlin,Esquire PERSUN&HEIM,P.C. P.O.Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg,PA 17055-0659 (717)620-2440—Phone (717)620-2442—Fax mehamlin(a,persunheim.com JOSEPH ASCOLI, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : : Case No. 13-6840 Civil Term NAPA TRANSPORTATION, INC., Defendant. . ANSWER WITH NEW MATTER OF DEFENDANT, NAPA TRANSPORTATION,INC. AND NOW comes Defendant, NAPA Transportation, Inc. (hereinafter"NAPA"), by and through its attorneys, Persun &Heim, P.C., to file the within Answer with New Matter to Plaintiff's Complaint, dated November 15, 2013, avers the following: 1. The averments and conclusions of law contained in paragraph 1 of the Complaint are denied. By way of further answer, the terms of the letter of agreement attached as Exhibit "A"to the Complaint speak for themselves. Any characterization or alleged implication drawn from the terms of that letter is denied. 2. In response to paragraph 2 of the Complaint, NAPA restates and reiterates its answer to paragraph 1 of the Complaint above as if hereinafter set forth in full. 3. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 3 of the Complaint, and the same are therefore denied. 4. The averments contained in paragraph 4 of the Complaint are admitted. 5. The averments contained in paragraph 5 of the Complaint are admitted. 6. In response to paragraph 6 of the Complaint, NAPA restates and reiterates its answers to paragraph 1 through 5 above as if hereinafter set forth in full. 7. The averments contained in paragraph 7 of the Complaint are admitted. 8. The averments contained in paragraph 8 of the Complaint are admitted. 9. The averments contained in paragraph 9 of the Complaint are admitted. 10. The averments contained in paragraph 10 of the Complaint are admitted. 11. Denied as stated. By way of further answer, the Plaintiff was terminated from NAPA's employment on April 6, 2012 following numerous verbal warnings given to Plaintiff by NAPA management representative regarding: Plaintiff's abusive, unreasonable and harassing behavior towards other NAPA employees; Plaintiffs failure to respond to employees' requests; and complaints being lodged with NAPA management about Plaintiff's demeaning, abusive, and inappropriate behavior that led to the creation of a hostile work environment for other NAPA employees such that some individuals left the employ of NAPA. 12. Denied as stated. By way of further answer, during Plaintiff's employment with NAPA during the period of May 18, 2009 through April 6, 2012, Plaintiff held the position of Planning Manager. 13. Denied as stated. By way of further answer,NAPA management representative verbally warned Plaintiff on numerous occasions about Plaintiff's inappropriate conduct towards other employees of NAPA and complaints being lodged against him relating to such conduct by driver managers and drivers. 2 14. Denied as stated. By way of further answer, as of August 1, 2011, until Plaintiff's termination on April 6,2012, Plaintiff's gross weekly salary was$1,708.50 without medical benefits. 15. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 15 of the Complaint, and the same are therefore denied. 16. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 16 of the Complaint, and the same are therefore denied. 17. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 17 of the Complaint, and the same are therefore denied. 18. Denied as stated. By way of further answer,NAPA's President Ronald G. Accomando, Jr. did contact and offer re-employment to Plaintiff with NAPA. 19. Denied as stated. By way of further answer, Ronald G. Accomando, Jr. did meet with Plaintiff and offered him re-employment with NAPA. 20. The averments contained in paragraph 20 of the Complaint are admitted. 21. The averments contained in paragraph 21 of the Complaint are admitted. 22. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 22 of the Complaint, and the same are therefore denied. 3 23. Denied as stated. By way of further answer, after Plaintiff was contacted by Nicolas Accomando, General Manager of NAPA, regarding re-employment with NAPA and subsequently Plaintiff met with Nicolas Accomando, to discuss such re-employment. 24. The averments contained in paragraph 24 of the Complaint are admitted. 25. The averments contained in paragraph 25 of the Complaint are admitted. 26. Denied as stated. By way of further answer,Nicolas Accomando had several discussions with Plaintiff regarding his re-employment with NAPA and conditions of such re- employment during which Plaintiff agreed to as a condition of his re-employment and continued employment with NAPA that he would not engage in abusive,hostile and inappropriate behavior towards other employees of NAPA. 27. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 27 of the Complaint, and the same are therefore denied. 28. Denied as stated. By way of further answer, Ronald G. Accomando, Jr. had several conversations with Plaintiff regarding his re-employment with NAPA and conditions relating to the same, the result of which was that Plaintiff accepted an offer of re-employment by NAPA under such conditions. 29. Denied as stated. By way of further answer, Nicolas Accomando had several discussions with Plaintiff regarding his re-employment with NAPA during which Plaintiff agreed to as a condition of his re-employment and continued employment NAPA he would not engage in abusive, hostile and inappropriate behavior towards other employees of NAPA. 30. The averments contained in paragraph 30 of the Complaint are denied. 4 31. Denied as stated. By way of further answer, the parties entered into the letter of agreement attached as Exhibit "A"to the Complaint and the terms of the said document speak for themselves. Any characterization or alleged implication drawn from the terms of that letter is denied. 32. The averments contained in paragraph 32 of the Complaint are admitted. 33. Denied as stated. By way of further answer, Ronald G. Accomando, Jr. as President of NAPA met with Plaintiff Plaintiff demanded a one year employment agreement, to which Ronald G. Accomando, Jr. had prepared and tendered the letter of agreement attached as Exhibit"A"to the Complaint which Plaintiff and Ronald G. Accomando, Jr. executed. 34. The averments contained in paragraph 34 of the Complaint are denied. 35. Denied as stated. By way of further answer, the terms of the document, dated June 29, 2012 attached as Exhibit"A"to the Complaint speak for themselves. Any characterization or alleged implication drawn from the terms of that letter is denied. 36. Denied as stated. By way of further answer, the terms of the document, dated June 29, 2012 attached as Exhibit"A"to the Complaint speak for themselves. Any characterization or alleged implication drawn from the terms of that letter is denied. 37. Denied as stated. By way of further answer, the terms of the document, dated June 29, 2012 attached as Exhibit"A"to the Complaint speak for themselves. Any characterization or alleged implication drawn from the terms of that letter is denied. 38. Denied as stated. By way of further answer, the terms of the document, dated June 29, 2012 attached as Exhibit "A"to the Complaint speak for themselves. Any characterization or alleged implication drawn from the terms of that letter is denied. 5 39. The averments contained in paragraph 39 of the Complaint are denied. 40. Denied as stated. During Plaintiff's employment review conducted on July 17, 2013, NAPA advised Plaintiff that he was reverting to his hostile and abusive treatment of other NAPA employees that Plaintiff had agreed not to engage in as a condition of his re-employment and continued employment with NAPA. 41. Denied as stated. By way of further answer, Plaintiff only received a cost of living adjustment. Plaintiff did not receive any merit based increase in his salary. 42. Denied as stated. By way of further answer, NAPA's management representatives repeatedly verbally warned Plaintiff about his unreasonable, abusive and harassing behavior towards co-employees prior to being terminated for that reason on October 25, 2013. 43. Denied as stated. By way of further answer, following the termination of Plaintiff, NAPA advised its employees that Plaintiff had been terminated because it wished to create a more positive work environment and take the company in a different direction. 44. Denied. By way of further answer, through Plaintiffs abusive, unreasonable and hostile conduct towards his co-employees, Plaintiff materially breached the letter agreement attached as Exhibit"A"to the Complaint and conditions to his continued employment with NAPA, thereby relieving NAPA of its obligation to employ Plaintiff beyond October 25, 2013. 6 AS AND FOR AN ANSWER TO COUNT I—BREACH OF CONTRACT 45. In response to paragraph 45 of the Complaint,NAPA restates and reiterates its answers to paragraphs 1 through 44 above as if hereinafter set forth in full. 46. The averments contained in paragraph 46 of the Complaint are denied. 46. The averments contained in paragraph 46 of the Complaint are denied. 47. The averments contained in paragraph 47 of the Complaint are denied. 48. The averments contained in paragraph 48 of the Complaint are denied. 49. The averments contained in paragraph 49 of the Complaint are denied. 50. The averments contained in paragraph 50 of the Complaint are denied. 51. The averments contained in paragraph 51 of the Complaint are denied. WHEREFORE, Defendant,NAPA Transportation, Inc., respectfully requests this Honorable Court enter judgment in its favor and against Plaintiff, Joseph Ascoli, dismissing the Complaint and granting such other and further relief as this Court deems just and proper. AS AND FOR AN ANSWER TO COUNT II—PROMISSORY ESTOPPEL/RELIANCE 52. In response to paragraph 52 of the Complaint, NAPA restates and reiterates its answers to Paragraphs 1 through 51 above, as if hereinafter set forth in full. 53. The averments contained in paragraph 53 of the Complaint are denied. 54. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 54 of the Complaint, and the same are therefore denied. 55. After reasonable investigation,NAPA is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 55 of the Complaint, and the same are therefore denied. 7 56. The averments contained in paragraph 56 of the Complaint are denied. WHEREFORE, Defendant, NAPA Transportation, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, Joseph Ascoli, dismissing the Complaint and granting such other and further relief as this Court deems just and proper. NEW MATTER 57. NAPA restates and reiterates its answers to paragraphs 1 through 56 above, and hereby incorporates those answers herein by reference. 58. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 59. Plaintiff's claims are barred in whole or in part by the doctrines of accord and satisfaction, latches, waiver,justification and/or estoppel. 60. Plaintiff materially breached the letter agreement by creating hostile and unacceptable work environment through his verbal abuse and harassment of co-employees in violation of NAPA's employment policies and procedures contained in NAPA's management associate's employment handbook that was previously provided to Plaintiff on December 8, 2011. 61. Plaintiff failed to meet and satisfy the conditions of his re-employment and continued employment with NAPA under the agreement between the parties relating to his workplace behavior and treatment of other NAPA employees. 62. Plaintiff has failed to mitigate or properly mitigate his damages. 63. All or a portion of Plaintiff's complaint and claims asserted therein may be barred and/or limited by the defense of failure of consideration. 8 64. Plaintiff is not entitled to recover attorney's fees, past lost earnings, future lost earnings, salary, pay increases,pain and suffering damages,punitive damages,bonus,medical and other benefits sought in the Complaint. WHEREFORE, Defendant, NAPA Transportation, Inc., respectfully requests this Honorable Court to enter a judgment in its favor and against the Plaintiff,Joseph Ascoli, dismissing the Complaint together with an award of costs and such other further and differently relief this Court deems just and proper. PERSUN&HEIM, P.C. By: Ma hew E. Hamli squire Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620-2440 - Phone (717) 620-2442 -Fax Attorneys for Defendant, NAPA Transportation, Inc. Date: January 14, 2014 9 VERIFICATION I, Ronald G. Accomando, Jr., hereby acknowledge that I am the President of NAPA Transportation, Inc., that I am authorized to make this verification on its behalf; that I have read the Answer with New Matter; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. NAPA TRANSPORTATION, INC. Y ...id( - / onald G. Accomando, Jr. / President Date:/ / - o2G/'/ 10 CERTIFICATE OF SERVICE I, Matthew E. Hamlin, Esquire, hereby certify that I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure,by depositing a copy of the same in the United States Mail at Mechanicsburg, Pennsylvania, with first-class postage,prepaid, as follows: Joshua S. Boyette, Esq. Swartz Swidler, LLC 1878 Marlton Pike East, Suite 10 Cherry Hill,NJ 08003 PERSUN&HEIM, P.C. By: �. U�: i Matthew E. Hamlin, uire Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620-2440 - Phone (717) 620-2442 - Fax Attorneys for Defendant, NAPA Transportation, Inc. Date: January 14, 2014 36526v1 • Richard S. Swartz, Esq. 2014 p58 _d I 0 TA It? Joshua S. Boyette, Esq. } ., i�( : SWARTZ SWIDLER,LLC I1 CU �� �� 30 1878 Marlton Pike East, Ste. 10 PENNS YL./V COU?I T ' Cherry Hill,NJ 08003 A Phone: (856) 685-7420 Fax: (856) 685-7417 Attorneys for Plaintiff JOSEPH ASCOLI 446 Waterleaf Court COURT OF COMMON PLEAS Mechanicsburg,PA 17050 OF CUMBERLAND COUNTY Plaintiff, DOCKET NO.: 13-6840 v. COMPLAINT AND JURY DEMAND NAPA TRANSPORTATION, INC: 4800 E. Trindle Road Mechanicsburg,PA 17050 ANSWER TO NEW MATTER Plaintiff Joseph Ascoli (hereinafter "Plaintiff"), by and through his undersigned counsel, hereby avers as follows against NAPA Transportation, Inc. (hereinafter"Defendant"). 57. To the extent necessary, Plaintiff denies any and all averments incorporated in Paragraph 57 into Defendant's New Matter. 58. The averments and conclusions of law contained in Paragraph 58 of Defendant's New Matter are denied. 59. The averments and conclusions of law contained in Paragraph 59 of Defendant's New Matter are denied. 60. The averments and conclusions if law contained in Paragraph 60 of Defendant's New Matter are denied. 61. The averments contained in Paragraph 61 of Defendant's New Matter are denied. 62. The averments and conclusions of law contained in Paragraph 62 of Defendant's New Matter are denied. 63. The averments and conclusions of law contained in.Paragraph 63 of Defendant's New Matter are denied. 64. The averments and conclusions of law contained in Paragraph 64 of Defendant's New Matter are denied. Respec . ly Submitted, dif o ua S. Boyette, Esq. . 'ichard S. Swartz, Esq. SWARTZ SWIDLER,LLC 1878 Marlton Pike East, Ste. 10 Cherry Hill,NJ 08003 Phone: (856) 685-7420 Fax: (856) 685-7417 Date: January 29, 2014 60. The averments and conclusions If law contained in Paragraph 60 of Defendant's New Matter are denied. • 6.1. The averments contained in Paragraph 61 of Defendant's New Matter are denied. 62. The averments and conclusions of law contained in Paragraph 62 of Defendant's New Matter are denied. 63. The averments and conclusions of law contained in Paragraph 63 of Defendant's New Matter are denied. 64. The averments and conclusions of law contained in Paragraph 64 of Defendant's New Matter are denied. Respec . ly Submitted, ua S. Boyette, Esq. ichard S. Swartz, Esq. . SWARTZ SWIDLER, LLC 1 878 Marlton Pike East, Ste..10 Cherry Hill,NJ 08003 Phone: (856) 685-7420 Fax: (856) 685-7417 Date: January 29,2014 VERIFICATION I,Joseph Ascoli,Plaintiff,hereby state that the facts above set forth are true and correct (or are true and correct to the best of my knowledge,information,and belief)and that I expect to be able to prove the same at a hearing held in this matter.I understand that the statements herein are.made subject to the penalties of 18 Pa.C.S. 4904(relating to sworn and unsworn statements). Dated G S6 l( Signed: I 1 , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH ASCOLI vs. NAPA TRANSPORTATION, INC. CIVIL ACTION NO. 13-6840 . JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Defendant, NAPA Transportation, Inc., in the above -captioned matter. PERSUN & HEIM, P.C. Date: June 3, 2014 By: 'Matthew E.4 squire ID #86142 1700 Bent Creek Blvd., Suite 160 P.O. Box 659 Mechanicsburg, PA 17055-0659 (717) 620-2635 Fax (717) 620-2442 Email: mechamlin@persunheim.com PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, NAPA Transportation, Inc., in the above - captioned matter. Date LA l /2-011-1 38984v1 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP By luace/A/\ Tracy A. Walsh, Esquire ID #62481 2000 Market Street, Suite 1300 Philadelphia, PA 19103 (215) 825-7224 Fax (215) 564-7699 Email: twalsh(ii),wglaw.com WEBER GALLAGHER SIMPSON . ? ; STAPLETON FIRES & NEWBY LLP 0� L} d6,; By: Brett A. Zahorchak, Esquire `�f� ``i%I; ID# 307867 Attorneys for Defendant, <-4/4,c,,f • 2000 Market Street NAPA Transportation, Inc. S}-6f Suite 1300 ���,��� Philadelphia, PA 19103 Phone: (215) 972-7900 Fax: (215) 564-7699 JOSEPH ASCOLI : CUMBERLAND COUNTY vs. NAPA TRANSPORTATION, INC. : DOCKET NO.: 13-6840 : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendant, NAPA Transportation, Inc. Defendant demands a trial by jury with twelve (12) jurors. WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP By: Brett A. Zahorchak, Esquire Attorneys for Defendant, NAPA Transportation, Inc. Date: 6/5/14 CERTIFICATE OF SERVICE I hereby certify that on the 5TH day of June, 2014, a true and correct copy of the Praecipe for Entry of Appearance, filed on behalf of Defendant, NAPA Transportation, Inc., was served via United States First Class mail, postage prepaid, on the following counsel: Richard S. Swartz, Esquire Joshua S. Boyette, Esquire Swartz Swidler, LLC 1878 Marlton Pike East, Suite 10 Cherry Hill, NJ 08003 Attorneys for Plaintiff WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP By: Date: 6/5/14 Brett A. Zahorchak, Esquire Attorneys for Defendant, NAPA Transportation, Inc.