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HomeMy WebLinkAbout13-7123 Supreme Co nnsylvania Cou . i leas For Prothonotary Use Only: C Docket No: s' CLI r County 1 3— 7/�-3 �n The information collected on this fibrin is used solely far• court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required biV law or rules of court. Commencement of Action: S El Complaint ® Writ of Summons ® Petition ® Transfer from Another Jurisdiction [3 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Dustin C. McCorkle Schenker Logistics, Inc. Dollar Amount Requested: within arbitration limits I Are money damages requested? El Yes [3 No (check one) 13 outside arbitration limits O N Is this a Class Action Suit? ® Yes El No Is this an MDJAppeal? ® Yes El No A Name of Plaintiff /Appellant's Attorney: Fred H. Hait ® Check here if you have no attorney (are a Self - Represented JPro 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 i you consider most important. k TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ® Intentional ® Buyer Plaintiff Administrative Agencies ® Malicious Prosecution ® Debt Collection: Credit Card ® Board of Assessment ® Motor Vehicle ® Debt Collection: Other [3 Board of Elections ® Nuisance Dept. of Transportation ® Premises Liability 8 Statutory Appeal: Other S ® Product Liability (does not include E mass tort) [3 Employment Dispute: Slander/Libel /Defamation Discrimination ® ® C 0 Other: Employment Dispute: Other [3 Zoning Board , Civil Action for Violation of © Other: 18 Pa.C.S. 9100, et. seq. I ® Other: O MASS TORT ® Asbestos N ® Tobacco ® Toxic Tort - DES ® Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ® Toxic Waste ® Other: [3 Ejectment 13 Common Law /Statutory Arbitration B ® Eminent Domain/Condemnation ® Declaratory Judgment ® Ground Rent Mandamus ® Landlord/Tenant Dispute Non - Domestic Relations ® 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 ' D :'1 o t ; ?313 DEC -4 An 9. DC CUMBERLAND CCu "i'l Y PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DUSTIN C. MCCORKLE CIVIL ACTION —LAW Plaintiff NO. / J-70-3 a-3 CIVIL TERM V. : SCHENKER LOGISTICS, INC. Defendant : 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 STREET CARLISLE, PA 17013 (717) 249 -3166 Fl 63.') S pA J i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DUSTIN C. MCCORKLE CIVIL ACTION —LAW Plaintiff NO. 13-71X3 CIVIL TERM V. : SCHENKER LOGISTICS, INC. Defendant COMPLAINT AND NOW comes Plaintiff, Dustin C. McCorkle, by and through his attorneys, Smigel, Anderson & Sacks LLP, to make the following Complaint against Defendant Schenker Logistics, Inc. and avers in support as follows: 1. Plaintiff Dustin C. McCorkle is an adult individual who resides at 290 Lincoln Street, Carlisle, Cumberland County Pennsylvania, 17013. 2. Defendant Schenker Logistics Inc. is an Ohio corporation with a place of business located at 700 Allen Road, Carlisle, Cumberland County, Pennsylvania, 17013. 3. Plaintiff's Complaint is pursuant to Pennsylvania's Criminal History Record Information Act ( "CHRIA "), 18 Pa.C.S.A. § 9100, et. seq. 4. During the summer of 2013, Plaintiff applied for employment with Defendant. 5. On or about August 7, 2013, Plaintiff met with Defendant's Human Resources Manager, Tina Pelensky, regarding his potential employment. 6. Following this meeting, Plaintiff began an email conversation with Ms. Pelensky regarding his potential employment with Defendant. 7. The email exchange progressed as follows: a. Plaintiff expressed his continued interest in employment with Defendant. b. Ms. Pelensky represented that Defendant was interested in Plaintiff as a potential "Repair Tech." c. Plaintiff and Ms. Pelensky discussed the duties of a Repair Tech. Plaintiff learned that his role would primarily entail repairing iPhones, but may also include assisting in the cable wiring of Defendant's Carlisle office. 8. On or about September 6, 2013, Plaintiff received an employment offer from Defendant via an email from Ms. Pelensky. 9. By way of Ms. Pelensky's September 6 th email, Defendant offered Plaintiff the position of "ROR Tech." 10. Under Defendant's offer, Plaintiff was to be paid an hourly rate of $16.50 and be eligible for certain benefits including Defendant's 4011 plan as well as medical, dental and life insurance. 11. Ms. Pelensky's September 6 th email indicated that Defendant's offer for employment was contingent upon a satisfactory completion and review of a background and reference check regarding Plaintiff. 12. Plaintiff authorized Defendant to perform a background check which included a credit report and criminal history report. 13. On or about September 30, 2013, Plaintiff received a letter from Defendant which informed him that he had been denied employment with Defendant. 14. Defendant informed Plaintiff that its decision to deny Plaintiff employment was based on his background check. 15. Plaintiff believes and therefore avers that Defendant denied him employment because of his criminal history. 2 16. Section 9125 of Pennsylvania's CHRIA, 18 Pa.C.S.A. § 9125, restricts an employer's ability to deny an applicant employment based on his criminal record. 17. Pursuant to Section 9125, an employer may only consider felony and misdemeanor convictions. 18. Section 9125 limits an employer's consideration of prior felony and misdemeanor convictions to "only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied." 18 Pa.C.S.A. § 9125. 19. Plaintiff has been convicted of the following misdemeanors: a. Stalking, CP- 21 -CR- 0001810 -2010; b. Harassment, CP- 21 -CR- 0001239 -2010; c. Use/Possession of Drug Paraphernalia, CP- 21 -CR- 0000931 -2010; d. Possession of Marijuana, CP- 21 -CR- 0000931 -2010; and e. Driving Under the Influence - Controlled Substance, CP- 21 -CR- 0001934 -2008. 20. Plaintiff has not been convicted of any felonies. 21. None of Plaintiff's misdemeanor convictions relate to his suitability for employment as a Repair Tech for Defendant. 22. Defendant violated Pennsylvania's CHRIA when it denied Plaintiff employment. 23. The Sanctions section of Pennsylvania's CHRIA provides, in pertinent part, as follows: A person found by the court to have been aggrieved by a violation of this chapter or the rules or regulations promulgated under this chapter, shall be entitled to actual and real damages of not less than $100 for each violation and to reasonable costs of litigation and attorney's fees. Exemplary and punitive damages of not 3 less than $1,000 nor more than $10,000 shall be imposed for. any violation of this chapter, or the rules or regulations adopted under this chapter, found to be willful. 18 Pa.C.S.A § 9183. 24. Defendant knew or should have known about the applicable restrictions of Pennsylvania's CHRIA. 25. Defendant willfully violated Pennsylvania's CHRIA when it denied Plaintiff employment. WHEREFORE, Plaintiff Dustin C. McCorkle respectfully requests this Honorable Court . to enter judgment against the Defendant as follows: A. Defendant shall reinstate Plaintiff's offer for employment and hire him in the role of Repair Tech with employment terms at least as beneficial to Plaintiff as those contained in the original offer from Defendant. B. Defendant shall pay Plaintiff backpay at the hourly rate of $16.50 for the time period of September 30, 2013 until Defendant reinstates Plaintiff. Such backpay shall assume a 40 hour work week for Plaintiff and include interest. C. Defendant shall pay Plaintiff $10,000.00 for its willful violation of Pennsylvania's CHRIA. D. Defendant shall pay Plaintiff's cost of litigation, including attorney's fees. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: December 4, 2013 By: , � 2 ` `� Fred H. Hait, Esquire Attorney I.D. No. 34331 David W. Park, Esquire 4 Attorney I.D. No. 315905 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 -1778 (717) 234 -2401 Attorneys for Plaintiffs 5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DUSTIN C. MCCORKLE CIVIL ACTION —LAW Plaintiff NO. CIVIL TERM V. SCHENKER LOGISTICS, INC. Defendant VERIFICATION I, Dustin C. McCorkle, verify that the statements contained in the foregoing Complaint 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. Date: Dustin C. McCorkle, Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ` "� 01 CH ititorti, kOhilTh Jody S Smith Chief Deputy C, " i 3 DEC 1 7 AM 9: 5 ,P Richard W Stewart , . ,. Solicitor _= .3 ..= µn. •,PD:`a ,UMBERLAHU GOi,it=i I PENNSYLVANIA Dustin C McCorkle vs. Case Number Schenker Logistics, Inc. 2013-7123 SHERIFF'S RETURN OF SERVICE 12/05/2013 01:43 PM - Deputy Shawn Gutshall, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Tiffany Stough, Security Supervisor, who accepted as"Adult Person in Charge"for Schenker Logistics, Inc. at 700 Allen Road, South Middleton, Carlisle, PA 17013. :';14.11M—GUTS - , 'EPUTY SHERIFF COST: $35.24 SO ANSWERS, December 06, 2013 RONNY ANDERSON, SHERIFF u �YSu 'hanff-e sc`: .- • g Fox Rothschild,LLP BY: Franz Espanol,Esquire (3 fl EC 23 FM 2: 14;:' Attorney for Defendant, Schenker Logistics,Inc. E.U 2000 Market Street,Twentieth Floor ! 1`,E [il )rt" Philadelphia,PA 19103 E s. }"� (215)299-2000 DUSTIN C. MCCORKLE, • COURT OF COMMON PLEAS • CUMBERLAND COUNTY, PA Plaintiff, • v. • • NO. 13-7123 SCHENKER LOGISTICS, INC., • • Defendant. • NOTICE OF FILING OF NOTICE OF REMOVAL NOTICE IS HEREBY GIVEN that, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, Defendant, Schenker Logistics, Inc. has, on this 23rd day of December 2013, filed in the United States District Court for the Middle District of Pennsylvania a Notice of Removal to remove the above-captioned action from the Court of Common Pleas of Cumberland County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania. A copy of the Notice of Removal is attached hereto as Exhibit"1". ' - pe tful Subtted, • Fran Es 1, Esquire FO ROTHSCHILD LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103 fespanol@foxrothschild.com (215) 299-2000 Attorney for Defendant, Schenker Logistics, Inc. Dated: December 23, 2013 r 2 CERTIFICATE OF SERVICE I, Franz Espanol, hereby certify that a true and correct copy of the foregoing Notice of Filing of Notice of Removal of Defendant Schenker Logistics, Inc. was served upon the following counsel of record, this date, via First Class Mail, postage prepaid: Fred H. Hait, Esquire David, W. Park, Esquire Smigel, Anderson& Sacks, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 AAlik Fr. Es` ' , Esquire Dated: December 23, 2013 JS 44 (Rev.12/12) Case 3:02-at-06000 trelo d 12/23/13 Page 1 of 1 The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form,approved by the Judicial Conference of the United States in September 1974,is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTR!JCTJONS ONNLXTPAGI!OF THIS FORM) I. (a) PLAINTIFFS DEFENDANTS Dustin C. McCorkle Schenker Logistics, Inc. (b) County of Residence of First Listed Plaintiff Cumberland County, PA County of Residence of First Listed Defendant Fulton County, GA (EXCEPT IN U.S.PLAINTIFF CASES) (IN U.S.PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES,USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (C Attorneys(Firm Name,Address and Telephone Number) Attorneys(ifKnown) Fred" H. Halt, Esquire& David W. Par , Esquire Franz Espanol Smigel,Anderson&Sacks, LLP (717-234-2401) Fox Rothschild, LLP(215-299-2000) River Chase Office Center,3rd Floor, Harrisburg, PA 17110 2000 Market Street,20th Floor, Philadelphia, PA 19103 II. BASIS OF JURISDICTION(Place an"X"in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an"X"in One Box forPlainti; (For Diversity Cases Only) and One Box for Defendant) ❑ 1 U.S.Government ❑ 3 Federal Question PTF DEF PTF DEF Plaintiff (US.Government Not a Party) Citizen of This State X I ❑ I Incorporated or Principal Place ❑ 4 ❑ 4 of Business In This State ❑ 2 U.S.Government X 4 Diversity Citizen of Another State ❑ 2 ❑ 2 Incorporated and Principal Place ❑ 5 X 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a ❑ 3 ❑ 3 Foreign Nation ❑ 6 ❑ 6 Foreign Country IV NATURE OF SUIT(Place an"X"m One Box Only) (: CONTRACT' - TORTS - .. EORFEITURE(PENALTI' BANKRUPTCY ' OTHER STATUTES '-'I ❑ 110 Insurance PERSONAL INJURY PERSONAL INJURY ❑ 625 Drug Related Seizure ❑ 422 Appeal 28 USC 158 ❑ 375 False Claims Act ❑ 120 Marine ❑ 310 Airplane CI 365 Personal Injury - of Property 21 USC 881 ❑ 423 Withdrawal ❑ 400 State Reapportionment ❑ 130 Miller Act CI 315 Airplane Product Product Liability CI 690 Other 28 USC 157 ❑ 410 Antitrust CI 140 Negotiable Instrument Liability ❑ 367 Health Care/ ❑ 430 Banks and Banking ❑ 150 Recovery of Overpayment ❑ 320 Assault,Libel& Pharmaceutical PROPERTY RIGHTS' '. ❑ 450 Commerce &Enforcement of Judgment Slander Personal Injury ❑ 820 Copyrights CI 460 Deportation ❑ 151 Medicare Act ❑ 330 Federal Employers' Product Liability ❑ 830 Patent CI 470 Racketeer Influenced and CI 152 Recovery of Defaulted Liability CI 368 Asbestos Personal CI 840 Trademark Corrupt Organizations Student Loans CI 340 Marine Injury Product ❑ 480 Consumer Credit (Excludes Veterans) CI 345 Marine Product Liability LABOR ' SOCIAL SECURITY CI 490 Cable/Sat TV CI 153 Recovery of Overpayment Liability PERSONAL PROPERTY CI 710 Fair Labor Standards CI 861 HIA(1395ff) ❑ 850 Securities/Commodities/ of Veteran's Benefits CI 350 Motor Vehicle CI 370 Other Fraud Act ❑ 862 Black Lung(923) Exchange ❑ 160 Stockholders'Suits ❑355 Motor Vehicle CI 371 Truth in Lending ❑ 720 Labor/Management CI 863 DI WC/DI W W(405(g)) CI 890 Other Statutory Actions ❑ 190 Other Contract Product Liability CI 380 Other Personal Relations CI 864 SSID Title XVI ❑ 891 Agricultural Acts CI 195 Contract Product Liability CI 360 Other Personal Property Damage CI 740 Railway Labor Act ❑ 865 RSI(405(g)) CI 893 Environmental Matters ❑ 196 Franchise Injury ❑ 385 Property Damage ❑ 751 Family and Medical ❑ 895 Freedom of Information ❑362 Personal Injury- Product Liability Leave Act Act Medical Malpractice ❑ 790 Other Labor Litigation ❑ 896 Arbitration REAL PROPERTY. - . ' CIVIL RIGHTS ';:I PRISONER PETITIONS ❑ 791 Employee Retirement FEDERAL TAX SUITS ❑ 899 Administrative Procedure ❑210 Land Condemnation ❑440 Other Civil Rights Habeas Corpus: Income Security Act CI 870 Taxes(U.S.Plaintiff Act/Review or Appeal of CI 220 Foreclosure ❑441 Voting CI 463 Alien Detainee or Defendant) Agency Decision CI 230 Rent Lease&Ejectment i9 442 Employment CI 510 Motions to Vacate CI 871 IRS—Third Party CI 950 Constitutionality of ❑ 240 Torts to Land CI 443 Housing/ Sentence 26 USC 7609 State Statutes ❑ 245 Tort Product Liability Accommodations ❑ 530 General CI 290 All Other Real Property ❑445 Amer.w/Disabilities- ❑ 535 Death Penalty ' IMMIGRATION " Employment Other: CI 462 Naturalization Application ❑446 Amer.w/Disabilities- ❑ 540 Mandamus&Other CI 465 Other Immigration Other ❑ 550 Civil Rights Actions ❑448 Education CI 555 Prison Condition CI 560 Civil Detainee- Conditions of Confinement V. ORIGIN(Place an"X"in One Box Only) ❑ 1 Original ):2 Removed from ❑ 3 Remanded from O 4 Reinstated or O 5 Transferred from ❑ 6 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation (spec) Cite the U.S.Civil Statute under which you are filing(Do not cite jurisdictional statutes unless diversity): 28 U.S.C. 1332 VI. CAUSE OF ACTION Brief description of cause: Action for alleged violation of Pennsylvania's Criminal History Record Information Act VII. REQUESTED IN El CHECK IF THIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23,F.R.Cv.P. JURY DEMAND: O Yes X No VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD 12/23/2013 s/ Franz Espanol FOR OFFICE USE ONLY RECEIPT AMOUNT APPLYING IFP JUDGE MAG.JUDGE Case 8:02-at-06000 Document 1480-2 Filed 12/23/13 Page 1 of 9 EXHIBIT "A" Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 2 of 9 Supreme Co€.0 k •nnsylvania Cour + t t 1.1. leas For Prothonotary Use Only: ey F- .mot: "ti jd e i xe .7; Docket No: Si t CU - ' 1i n County / 3— 7/r)-3 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S ei Complaint 0 Writ of Summons 0 Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Dustin C. McCorkle Schenker Logistics, Inc. T Dollar Amount Requested: E2 within arbitration limits I Are money damages requested? 11 Yes 0 No (check one) El outside arbitration limits 0 N Is this a Class Action Suit? ❑Yes l2 No Is this an MDJAppeal? CI Yes el No A Name of Plaintiff/Appellant's Attorney: Fred H. Halt • 0 Check here if you have no attorney(are a Self-Represented [Pro 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 0 Intentional 0 Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment ❑Motor Vehicle 0 Debt Collection:Other ❑ Board of Elections ❑Nuisance agl Dept.of Transportation ❑ Premises Liability Da Statutory Appeal:Other S 0 Product Liability(does not include E mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C i3 Other: 0 Employment Dispute:Other 0 Zoning Board Civil Action for Violation of 0 Other: 18 Pa.C.S.§9100,et.seq. I 0 Other: g MASS TORT ❑ Asbestos N 0 Tobacco 0 Toxic Tort-DES 0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste El 0 Ejectment ❑Common Law/Statutory Arbitration B ❑Eminent Domain/Condemnation ❑Declaratory Judgment 0 Ground Rent [J Mandamus 0 Landlord/Tenant Dispute ❑Non-Domestic Relations ❑Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial 0 Quo Warranto O Dental 0 Partition 0 Replevin ❑ Legal 0 Quiet Title 0 Other: ❑ Medical 0 Other: ❑ Other Professional: Updated 1/1/2011 Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 3 of 9 F:LED-�FFIGc: i HE PROTHONOTARY • 7.013 DEC — AN 9: DO CUMBERLAND COUNT' ' PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA DUSTIN C. MCCORKLE • CIVIL ACTION—LAW • Plaintiff • NO. /3--70-3 CIVIL TERM v. • • • SCHENKER LOGISTICS, INC. Defendant 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 STREET CARLISLE,PA 17013 (717)249-3166 fiO3. ) J pda i ra v �� X98'919 Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 4 of 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DUSTIN C. MCCORKLE : CIVIL ACTION—LAW • Plaintiff NO.13_71,1_3 CIVIL TERM v. • SCHENKER LOGISTICS, INC. • Defendant COMPLAINT AND NOW comes Plaintiff, Dustin C. McCorkle, by and through his attorneys, Smigel, Anderson& Sacks LLP, to make the following Complaint against Defendant Schenker Logistics, Inc. and avers in support as follows: 1. Plaintiff Dustin C. McCorkle is an adult individual who resides at 290 Lincoln Street, Carlisle, Cumberland County Pennsylvania, 17013. 2. Defendant Schenker Logistics Inc. is an Ohio corporation with a place of business located at 700 Allen Road, Carlisle, Cumberland County,Pennsylvania, 17013. 3. Plaintiffs Complaint is pursuant to Pennsylvania's Criminal History Record Information Act("CHRIA"), 18 Pa.C.S.A. § 9100, et. seq. 4. During the summer of 2013,Plaintiff applied for employment with Defendant. 5. On or about August 7, 2013, Plaintiff met with Defendant's Human Resources Manager, Tina Pelensky, regarding his potential employment. 6. Following this meeting, Plaintiff began an email conversation with Ms. Pelensky regarding his potential employment with Defendant. 7. The email exchange progressed as follows: a. Plaintiff expressed his continued interest in employment with Defendant. Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 5 of 9 b. Ms. Pelensky represented that Defendant was interested in Plaintiff as a potential"Repair Tech." c. Plaintiff and Ms. Pelensky discussed the duties of a Repair Tech. Plaintiff learned that his role would primarily entail repairing iPhones, but may also include assisting in the cable wiring of Defendant's Carlisle office. 8. On or about September 6, 2013, Plaintiff received an employment offer from Defendant via an email from Ms. Pelensky. 9. By way of Ms. Pelensky's September 6th email, Defendant offered Plaintiff the position of"ROR Tech." 10. Under Defendant's offer, Plaintiff was to be paid an hourly rate of$16.50 and be eligible for certain benefits including Defendant's 401k plan as well as medical, dental and life insurance. 11. Ms. Pelensky's September 6th email indicated that Defendant's offer for employment was contingent upon a satisfactory completion and review of a background and reference check regarding Plaintiff 12. Plaintiff authorized Defendant to perform a background check which included a credit report and criminal history report. 13. On or about September 30, 2013, Plaintiff received a letter from Defendant which informed him that he had been denied employment with Defendant. 14. Defendant informed Plaintiff that its decision to deny Plaintiff employment was based on his background check. 15. Plaintiff believes and therefore avers that Defendant denied him employment because of his criminal history. 2 Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 6 of 9 16. Section 9125 of Pennsylvania's CHRIA, 18 Pa.C.S.A. § 9125, restricts an employer's ability to deny an applicant employment based on his criminal record. 17. Pursuant to Section 9125, an employer may only consider felony and misdemeanor convictions. 18. Section 9125 limits an employer's consideration of prior felony and misdemeanor convictions to "only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied." 18 Pa.C.S.A. § 9125. 19. Plaintiff has been convicted of the following misdemeanors: a. Stalking, CP-21-CR-0001810-2010; b. Harassment, CP-21-CR-0001239-2010; c. Use/Possession of Drug Paraphernalia, CP-21-CR-0000931-2010; d. Possession of Marijuana, CP-21-CR-0000931-2010; and e. Driving Under the Influence-Controlled Substance, CP-21-CR-0001934-2008. 20. Plaintiff has not been convicted of any felonies. 21. None of Plaintiff's misdemeanor convictions relate to his suitability for employment as a Repair Tech for Defendant. 22. Defendant violated Pennsylvania's CHRIA when it denied Plaintiff employment. 23. The Sanctions section of Pennsylvania's CHRIA provides, in pertinent part, as follows: A person found by the court to have been aggrieved by a violation of this chapter or the rules or regulations promulgated under this chapter, shall be entitled to actual and real damages of not less than$100 for each violation and to reasonable costs of litigation and attorney's fees. Exemplary and punitive damages of not 3 Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 7 of 9 less than $1,000 nor more than $10,000 shall be imposed for.any violation of this chapter,or the rules or regulations adopted under this chapter, found to be willful. 18 Pa.C.S.A § 9183. 24. Defendant knew or should have known about the applicable restrictions of Pennsylvania's CHRIA. 25. Defendant willfully violated Pennsylvania's CHRIA when it denied Plaintiff employment. WHEREFORE,Plaintiff Dustin C. McCorkle respectfully requests this Honorable Court to enter judgment against the Defendant as follows: A. Defendant shall reinstate Plaintiff's offer for employment and hire him in the role of Repair Tech with employment terms at least as beneficial to Plaintiff as those contained in the original offer from Defendant. B. Defendant shall pay Plaintiff backpay at the hourly rate of $16.50 for the time period of September 30, 2013 until Defendant reinstates Plaintiff. Such backpay shall assume a 40 hour work week for Plaintiff and include interest. C. Defendant shall pay Plaintiff$10,000.00 for its willful violation of Pennsylvania's CHRIA. D. Defendant shall pay Plaintiff's cost of litigation, including attorney's fees. Respectfully submitted, SMIGEL,ANDERSON& SACKS,L.L.P. Date: December 4, 2013 By: �, 2s Fred H. Hait,Esquire Attorney I.D.No. 34331 David W. Park,Esquire 4 Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 8 of 9 Attorney I.D.No. 315905 River Chase Office Center,3rd Floor 4431 North Front Street Harrisburg,PA 17110-1778 (717)234-2401 Attorneys for Plaintiffs 5 • Case 3:02-at-06000 Document 1480-2 Filed 12/23/13 Page 9 of 9 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA DUSTIN C. MCCORKLE CIVIL ACTION—LAW Plaintiff NO. CIVIL TERM v. SCHENKER LOGISTICS, INC. • Defendant VERIFICATION I, Dustin C. McCorkle, verify that the statements contained in the foregoing Complaint 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. Date: 11A- Q / Dustin C. McCorkle, Plaintiff Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA No. DUSTIN C. MCCORKLE, (Cumberland County Court of Plaintiff, Common Pleas No. 13-7123) v. SCHENKER LOGISTICS, INC•, Defendant. NOTICE OF REMOVAL TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA: PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 Defendant, Schenker Logistics, Inc. (hereinafter identified as "Defendant" or "Schenker"), hereby files its Notice of Removal for the purpose of removing the action docketed at Case No. 13-7123 in the Court of Common Pleas of Cumberland County, Pennsylvania (the "Action") to the United States District Court for the Middle District of Pennsylvania. Schenker appears for the purpose of removal only and for no other purpose and reserves all defenses and rights available to it, and states as follows: Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 2 of 7 1. On December 4, 2013, Plaintiff, Dustin C. McCorkle (the "Plaintiff') commenced this Action by filing a civil complaint (the "Complaint") against Schenker in the Court of Common Pleas of Cumberland County, Pennsylvania. 2. Schenker was served with the Complaint on December 5, 2013. Removal of the Action is timely because it is within 30 days of service of the Complaint on Defendant. See 28 U.S.C. § 1446(b). 3. In accordance with 28 U.S.C. § 1446(a), a true and correct copy of the Complaint, and all other filings, are attached hereto as Exhibit "A". Schenker has not served or been served with any other process, pleadings, or orders in this Action. 4. Plaintiffs Complaint alleges Schenker denied Plaintiff employment based on his criminal history in violation of Pennsylvania's Criminal History Record Information Act ("CHRIA"), 18 Pa.C.S.A § 9100, et. seq. (Complaint at¶¶ 3, 22). 5. Plaintiff filed this case in the Court of Common Pleas of Cumberland County Pennsylvania; therefore, this case may properly be removed to the United States District Court for the Middle District of Pennsylvania. See 28 U.S.C. § 1441(a). 6. The Action is a civil action over which the United States District Court for the Middle District of Pennsylvania has original jurisdiction pursuant to 2 Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 3 of 7 28 U.S.C. § 1332(a)(1), and which may be removed to this Court pursuant to the provisions of 28 U.S.C. § 1441, as the parties are citizens of different states and the amount in controversy is in excess of$75,000, exclusive of interest and costs. 7. Plaintiff resides in Pennsylvania. (Complaint at¶1). 8. Contrary to Plaintiffs allegations, Schenker is incorporated in the State of North Carolina, with its principal place of business in the State of Georgia. (See Complaint at¶2 (alleging Schenker is incorporated in Ohio)). 9. Therefore, there is complete diversity of citizenship because Plaintiff is a citizen of Pennsylvania and Defendant is a citizen of North Carolina and/or Georgia for purposes of 28 U.S.C. § 1332. 10. Although the Complaint does not expressly plead the amount in controversy, the amount in controversy in this Action exceeds $75,000. See 28 U.S.C. § 1332. Plaintiff seeks, inter alia, recovery of back pay with interest and $10,000 for the willful violation of CHRIA, and further requests that Schenker reinstate its offer of employment and hire Plaintiff. (Complaint at p.4). In determining the amount in controversy for purposes of diversity jurisdiction, it is well established that, in actions seeking non-monetary relief, the amount in controversy is measured by the value of the object of the litigation. Hunt v. Washington State Apple Advertising Comm'n., 432 U.S. 333, 347 (1977); County of Washington v. U.S. Bank Nat'l Ass., No. 11-1405, 2012 WL 3860474 at *19 3 Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 4 of 7 (W.D.Pa. Aug. 17, 2012). Here, as Plaintiff seeks employment by Schenker, it is the value of that employment— Plaintiff's wages and benefits—which is the object of the litigation. County of Washington, 2012 WL 3860474 at *20 ("[W]hen a person seeks an injunction or other form of specific relief, such as specific performance, it is the value to the plaintiff. . . that is the yardstick."). Moreover, as Plaintiff confirms, the costs of litigation and attorneys' fees are available to Plaintiff under CHRIA. See 18 Pa.C.S.A § 9183(b)(2). When calculating the amount in controversy for purposes of diversity jurisdiction, attorneys' fees are also considered, which "could be as much as thirty percent of the judgment." Frederico v. Home Depot, 507 F.3d 188, 199 (3d Cir. 2007); see also Suber v. Chrysler Corp., 104 F.3d 578, 585 (3d Cir. 1997) ("Moreover, in calculating the amount in controversy, we must consider potential attorneys' fees."). Because it is not "legally certain" that less than $75,000.01 is at stake, this Action meets the traditional amount-in-controversy threshold necessary to establish the Court's diversity jurisdiction. See Frederico, 507 F.3d at 195, 197 (explaining that the challenger to subject matter jurisdiction must show to a "legal certainty" that the plaintiff cannot recover the jurisdictional amount). 11. As the amount in controversy exceeds the sum or value of$75,000, exclusive of interest and costs, and Plaintiff and Schenker are citizens of different states, this Action is properly removed to this Court. 4 Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 5 of 7 12. Pursuant to 28 U.S.C. § 1446(d), Schenker will provide written notice of removal of the Action to Plaintiff and promptly file a copy of this Notice of Removal with the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania. 13. Schenker assumes, except as otherwise stated and for purposes of removal only, that the allegations of Plaintiff's Complaint applicable to removal are true; provided, however, that Schenker does not concede that any wages, payments, contractual obligations, benefits, or remuneration of any type is owed to Plaintiff 14. Schenker files this Notice of Removal without waiving any objections or defenses to the Complaint and reserves all rights available to it. WHEREFORE, Defendant, Schenker Logistics, Inc., respectfully requests that the Action now pending in the Court of Common Pleas of Cumberland County, Pennsylvania, Case No. 13-7123, be removed to the United States District Court for the Middle District of Pennsylvania. 5 Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 6 of 7 Respectfully Submitted, s/ Franz Espanol Franz Espanol, Esquire FOX ROTHSCHILD LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103 fespanol @foxrothschild.com (215) 299-2000 Attorney for Defendant, Schenker Logistics, Inc. Dated: December 23, 2013 6 Case 3:02-at-06000 Document 1480 Filed 12/23/13 Page 7 of 7 CERTIFICATE OF SERVICE I, Franz Espanol, hereby certify that a true and correct copy of the foregoing Notice of Removal of Defendant Schenker Logistics, Inc. was served upon the following counsel of record, this date, via First Class Mail, postage prepaid: Fred H. Hait, Esquire David, W. Park, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 s/ Franz Espanol Franz Espanol, Esquire Dated: December 23, 2013