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HomeMy WebLinkAbout05-0767IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. No. OS-?L? 00, FLYING J, Defendant TO: FLYING 1, Defendant "NOTICE" I "AVISO" 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 (2o) 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 buy 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 of 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 Associati 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (Soo) 99o-9io8 "Le han demandado en come. Si usted desea defender contra las demandas dispuestas en las paginas siguientes, usted debe tomar la acci6n en el plaza de veinte (20) dias despo6s de esta queja y se sirve el aviso, incorporando on aspecto escrito personatmente o y archivando en escribir con la corte sus defensas u objeciones a las demandas dispuestas contra usted el abogado le advierte que que si usted no puede hacer asi que el caso puede proceder sin usted y on juicio se puede incorporar contra usted compra la corte sin aviso adicional para cualquier dinero demandado en la queja o para cualquier otra demanda o relevaci6n pedida per el demandante. Usted puede perder el dinero o la caracterfstica de otra endereza importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO fNMEDIATAMENTE. SI USTED NO HACE QUE UN ABOGADO VAYA A O LLAME POR TELEFONO La OFICINA DISPUESTA ABAJO. ESTA OFICINA PUEDE PROVEER DE USTED LA INFORMACION SOBRE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMAC16N SOBRE LAS AGENCIAS QUE LOS SERVICIOS JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O NINGUN HONORARIO Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (Soo) 99o-91o8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. FLYING 1, No. Defendant COMPLAINT 1. Plaintiff is Douglas A. Smith, an adult individual. 2. Defendant is Flying 1, a corporation which maintains a place of business in Middlesex Township, Cumberland County, Pennsylvania, with a street address of 1501 Carlisle Pike, Carlisle, PA 17013 3. Defendant employed Plaintiff as a mechanic from 1/2/03 to 10/2/04. 4. Plaintiff's rate of pay was $15.00 per hour plus commission of 5% on labor and 2% on parts. From 1/1/04 through and including 9/2/04 Defendant failed or refused to pay Plaintiff any commission that was due him for labor and parts. 5. Defendant paid Plaintiff for only a portion of the hours that he worked during his final week of work. 6. Defendant's refusal or failure to pay Plaintiff for all the hours worked and to pay commissions as promised is a violation of the Wage Payment and Collection Law, 43 P.S. § 260.1 etseq. WHEREFORE, Plaintiff requests judgment against Defendant for damages not in excess of $25,000.00, together with liquidated damages pursuant to section 10 of the Wage Payment and Collection Law, 43 P.S. §260.10, reasonable attorney fees pursuant to section 9(f)of the Wage Payment and Collection Law, 43 P.S. §260.9(f), costs of suit, and such additional relief as the Court deems appropriate. Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff Fred H. Hat, ID # 34331 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401/249-4500 (717) 236-3611(fax) fhait@sasllp.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff Vs. FLYING J, Civil Action-Law No. AFFIDAVIT I, the undersigned, verify that the facts set forth in the foregoing Complaint are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date / Z co/os ` -? Douglas A. Smith Defendant °=- <??, ?? ?. _?- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 vs. FLYING J, PRAECIPE FOR ENTRY OF Defendant. APPEARANCE Filed on behalf of: Defendant, Flying J Counsel of Record for this Party: Mark J. Gesk, Esquire Pa.ID #26392 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) 221315.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 vs. FLYING J, Defendant. PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the appearance of Mark J. Gesk, Esquire and Wayman, Irvin & McAuley, LLC on behalf of Defendant, FLYING J. JURY TRIAL IS DEMANDED. Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC 01 BY: i Mark J. (Ask, Esquire Counsel for Defendant, Flying J 22t315.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF APPEARANCE has been served on the following counsel of record by first class U.S. mail, postage pre-paid this 11`h day of March, 2005: Fred H. Hait, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 WAYMAN, IRVIN & McAULEY, LLC BY: ?A4t?'_ M Ark J. esk, Esquire Attorneys for Defendant, Flying J :221315.1 ;. SHERIFF'S RETURN - REGULAR CASE NO: 2005-00767 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH DOUGLAS A VS FLYING J VALERIE WEARY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn accordi says, the within WRIT OF SUMMONS was served upon FL DEFENDANT , at 1533:00 HOURS, on the 15th day of Feb at 1501 CARLISLE PIKE to law, 2005 CARLISLE, PA 17013 by handing to PAT MANGAN, GENERAL MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.70 Affidavit .00 Surcharge 10.00 .00 31.70 So Answers: R. Thomas Kline 02/16/2005 FRED HAIT & ASSOCIATES Sworn and Subscribed to before/ By: me this _ day of 4wi?, o ' A.D. tt Pro onotar y Sheri IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 vs. FLYING J, NOTICE OF SERVICE OF DEFENDANT'S Defendant. RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS Filed on behalf of: Defendant, Flying j Counsel of Record for this Party: Mark J. Gesk, Esquire Pa. ID #26392 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) :226753.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 Vs. FLYING J, Defendant. NOTICE OF SERVICE OF DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS I hereby certify that a true and correct copy of the within DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS was served upon all counsel of record by United States first-class mail, postage prepaid, this day of August, 2005, addressed as follows: Fred H. Hait, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC BY: -?- Mark J. Ges , Esquire Counsel for Defendant, Flying j :226753.1 r e j r:- r'. G> N Ui ^;7 ?x W 0 :q r t(?f =ri ,_ its IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 VS. FLYING J, PRAECIPE FOR SUBSTITUTION OF Defendant. APPEARANCE Filed on behalf of: Defendant, Flying J Counsel of Record for this Party: James W. Creenan, Esquire Pa. ID #79213 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) :221315.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 vs. FLYING J, Defendant. PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Kindly substitute the appearance of James W. Creenan, Esquire of Wayman, Irvin & McAuley, LLC for Mark J. Gesk, Esquire, on behalf of Defendant, FLYING J. JURY TRIAL IS DEMANDED. Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC er,z?XLA) W. Henan, Esquire el for Defendant, J :221315.1 v CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF APPEARANCE has been served on the following counsel of record by first class U.S. mail, postage pre-paid this 6' day of December, 2006: Fred H. Hait, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 WAYMAN, IRVIN & McAULEY, LLC V V 1 s W. Creenan, Esquire orneys for Defendant, ying j :221315.1 N d 1 LT" C::7 C+7 i ca IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff, Vs. FLYING J, Defendant. CIVIL DIVISION NO.: 05-767 ANSWER AND NEW MATTER Filed on behalf of: Defendant, Flying J TO: PLAINTIFF YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE WITHIN NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ?-? Counsel of Record for this Party: James W. Creenan, Esquire Pa. ID No. 79213 WAYMAN, IRVIN & McAULEY, LLC 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) :240012.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 vs. FLYING J, Defendant. ANSWER AND NEW MATTER AND NOW, comes the Defendant, FLYING J, by and through its attorneys, James W. Creenan, Esquire, and Wayman, Irvin & McAuley, LLC, and, pursuant to the Pennsylvania Rules of Civil Procedure, hereby files the following as its Answer and New Matter to the Complaint filed by Douglas A. Smith ("Plaintiff"): 1. Admitted. 2. Admitted in part. By way of a further response, Flying J's proper corporate name is Flying J, Inc. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that the Plaintiff was employed by Flying J with a base rate of $15.00 per hour plus commissions of 5 % on labor and 2% on parts. It is specifically denied that Flying J failed to pay the Plaintiff all wages due. 5. Denied. Flying J paid the Defendant all wages due. 6. Paragraph 6 is a conclusion of law to which no response is required. To the extent that a response is required, Flying J denies that it failed to pay Plaintiff all wages owed. :240012.1 WHEREFORE, Defendant Flying J, Inc. respectfully requests this Honorable Court dismiss the Plaintiff's Complaint with prejudice and award all reasonable costs and fees. NEW MATTER 7. Defendant Flying J incorporates Paragraphs 1 through 6 of its Answer as if the same were set forth at length herein. 8. The Plaintiff failed to plead a cause of action upon which he can recover. 9. The Plaintiff's claims may be barred by the applicable one-year statute of limitations. 10. Flying J paid the Plaintiff all wages due. 11. Plaintiff has failed to plead the amount or basis of any unpaid wages due; as a result, the claim is legally insufficient. 12. The Plaintiff cannot maintain a claim pursuant to 43 P.S. § 260.1, et seq. 13. Plaintiff's claims are barred by the statute of frauds. 14. Plaintiff's claims are barred by waiver. 15. Plaintiff's claims are barred by estoppel. 16. Plaintiff's claims are barred in whole or in part by doctrine of mootness. 17. Plaintiff's claims are barred because of release and settlement. 18. Plaintiff's claims are barred or limited by any offset to which the defendant is entitled. 240012.1 WHEREFORE, the defendant respectfully requests that this Honorable Court dismiss the Complaint against Flying J, Inc., and grant such other relief as the Court deems just and reasonable. Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC By: W. Creenan, Esquire el for Defendant, Flying J :240012.1 VERIFICATION I, Kelly Lowrey have read the foregoing Answer and New Matter and verify that the statements contained therein are true to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. WAJ Date: Ke 1 e ?` CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer and New Matter has been served on the following counsel of record by first class U.S. mail, postage pre-paid this LOA day of LkzUAbZL 2006: Fred H. Hait, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 WAYMAN, IRVIN & McAULEY, LLC BY W. Creenan, Esquire el for Defendant, Flying J, Inc. :240012.1 C'-? P--a rm c? CJ T7 - t i C17 Tt CZ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. FLYING J, Inc. Defendant 7. No response required. No. 05-767-Civil Term REPLY TO NEW MATTER 8. Paragraph Eight of Defendant's New Matter is a con0usion of law that requires no response. 9. Paragraph Nine of Defendant's New Matter is a conclusion of law that requires no response. 10. Plaintiff denies that Defendant paid all wages due. To the contrary, Plaintiff asserts that Defendant failed or refused to pay all wages due Plaintiff, as described in his Complaint, which is hereby incorporated by reference. 11.Paragraph Eleven of Defendant's New Matter is a conclusion of law that requires no response. 12. Paragraph Twelve of Defendant's New Matter is a conclusion of law that requires no response. 13. Paragraph Thirteen of Defendant's New Matter is a conclusion of law that requires no response. 14. Paragraph Fourteen of Defendant's New Matter is a conclusion of law that requires no response. 15. Paragraph Fifteen of Defendant's New Matter is a conclusion of law that requires no response. 16.Paragraph Sixteen of Defendant's New Matter is a conclusion of law that requires no response. 17. Paragraph Seventeen of Defendant's New Matter is a conclusion of law that requires no response. 18.After reasonable investigation, Plaintiff lacks knowledge or information sufficient to enable him to form a response to the allegations of Paragraph Eighteen of Defendant's New Matter. Such allegations are therefore denied, and proof is demanded. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys`for Plaintiff v S Fred H. Hait, ID # 34331 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611(fax) fhait@sasllp.com AFFIDAVIT I, Douglas A. Smith, verify that the facts set forth in the foregoing Reply to New Matter are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date ? ??L Douglas A. Sm IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. No. 05-767-Civil Term FLYING J, Inc. Defendant CERTIFICATE OF SERVICE I hereby certify that concurrent with filing the foregoing Replyto NewMatterl am serving a copy of same upon counsel of record for the Defendant by First Class Mail addressed as follows: James W. Creenan, Esq. Wayman, Irvin & McAuley, LLC. Suite 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219-6101 Date ! 3~ Fred H. Hait, ID # 34331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611(fax) fhait@saslip.com a -n S- co ors J ,. it J? ? DOUGLAS A. SMITH, Plaintiff Vs. FLYING J, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-767 20 - RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Fred H. Hait , counsel for the plaintiffldefendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ less than 9 r;_ n , Q0._• The counterclaim of the defendant in the action is nnnP. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Fred H Hait WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. 12VW Y Fred H. Hait, ID #.34331 4431 N. Front St., 3rd F1 Harrisburg, PA 17110 (717) 234-240) ORDER OF COURT AND NOW, , 200___, in consideration of the foregoing petition, Esq., and captioned action (or actions) as prayed for. Esq., and Esq., are appointed arbitrators in the above By the Court, EDGAR B. BAYLEY F co ? -T ; f CO DOUGLAS A. SMITH, Plaintiff VS. FLYING J, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-767 20 RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Fred H. Hait , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ less than ?,lyp?, p?____• The counterclaim of the defendant in the action is none The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Fred H. Hait WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. R?spo ly Fred' H. Hait, ID # .34331 4431 N. Front St., 3rd F1 Harrisburg, PA 17110 (717) 234-240) ORDER OF COURT AND NOW, YXywk 23 , 200 '7 , in consideratio of a foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators m the above captioned action (or actions) as prayed for. By the , An_ EDGAR B. BAYLEY PC . i?a G(ofl fry' w' ? 3oooro 3,? pub -OFn k-z - rip L 0 - N = co IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. FLYING J, INC., Defendant No. 05-767-Civil Term MOTION FOR LEAVE TO WITHDRAW APPEARANCE AS COUNSEL 1. The undersigned is counsel of record for Plaintiff in this matter, which is an action for unpaid wages and commissions under the Wage Payment and Collection Law, 43. P.S. § 2601. et seq. 2. The case is not currently listed for arbitration or trial. 3. The undersigned seeks leave to withdraw his appearance as counsel for Plaintiff because serious disagreement has arisen between the undersigned and Plaintiff over Plaintiff's insistence on presenting claims that are not plead in this action and which would be time-barred. Plaintiff will not accept counsel's opinion that attempting to assert such claims would be frivolous. WHEREFORE, the undersigned requests that the Court grant him leave to withdraw his appearance as counsel for Plaintiff. Respectfully submitted, Fred H. Wait, I # 34331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff Vs. FLYING J, INC., Defendant Civil Action-Law No. 05-767-Civil Term AFFIDAVIT 1, undersigned, verify that any facts not of record set forth in the foregoing MOTION are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date %k??7 r' Fred H. Hait, ID # 33 Smigel, Anderson & Sacks, LLP\ River Chase Office Center 4431 North Front Street. 3rd Floor Harrisburg, PA 17110 (717) 234-2401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff Civil Action-Law Vs. FLYING J, INC., Defendant No. 05-767-Civil Term CERTIFICATE OF SERVICE I hereby certify that concurrent with filing the foregoing Motion I am serving copies of same upon the following by First Class Mail and by Certified Mail, Return Receipt Requested: Douglas A. Smith, Plaintiff 138 Beetem Hollow Road Newville, PA 17241-9538 James W. Creenan, Esq. Counsel for Flying J, Inc. Wayman, Irvin & McAuley, LLC 1624 Frick Building 43 Grant Street Pittsburgh, PA 15219 Date: //w r Fred H. Hai ,' I # 34331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 rya s - « L: ? CC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. No. 05-767-Civil Term FLYING J, INC., Defendant AMENDED MOTION FOR LEAVE TO WITHDRAW APPEARANCE AS COUNSEL 1. The undersigned is counsel of record for Plaintiff in this matter, which is an action for unpaid wages and commissions under the Wage Payment and Collection Law, 43. P.S. § 2601. et seq. 2. The case is not currently listed for arbitration or trial. 3. No judge has previously ruled on any issue in this case. 4. The undersigned seeks leave to withdraw his appearance as counsel for Plaintiff because serious disagreement has arisen between the undersigned and Plaintiff over Plaintiffs insistence on presenting claims that are not plead in this action and which would be time-barred. Plaintiff will not accept counsel's opinion that attempting to assert such claims would be frivolous. 5. James W. Creenan, Esq., counsel of record for the Defendant, has indicated that he does not oppose this motion. WHEREFORE, the undersigned requests that the Court grant him leave to withdraw his appearance as counsel for Plaintiff. Respectfully submitted, OF, Fred H. Hait, ID #_:f4331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff Vs. FLYING J, INC., Defendant Civil Action-Law No. 05-767-Civil Term AFFIDAVIT I, undersigned, verify that any facts not of record set forth in the foregoing AMENDED MOTION are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date/v?/7/00;;P_ 0 _MW 'god Fred H. Hait, ID # 3 331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street. 3d Floor Harrisburg, PA 17110 (717) 234-2401 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff Civil Action-Law Vs. FLYING J, INC., Defendant No. 05-767-Civil Term CERTIFICATE OF SERVICE I hereby certify that concurrent with filing the foregoing Motion I am serving copies of same upon the following by First Class Mail : Douglas A. Smith, Plaintiff 138 Beetem Hollow Road Newville, PA 17241-9538 James W. Creenan, Esq. Counsel for Flying J, Inc. Wayman, Irvin & McAuley, LLC 1624 Frick Building 43 Grant Street Pittsburgh, PA 15219 Date: /W71/07 - ?daoArA2 Fred H. Hait, I 343 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 C") ^a ?? Lt t ;,r:: _ 'fit t? i_Y _ ..%.1?a w. - ?,? ?? T 6 Ci i ? '?,w 46. NOV 2 72007 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. No. 05-767-Civil Term FLYING J, INC., Defendant RULE TO SHOW CAUSE AND NOW, this I day of , 2007,upon consideration of the motion of Fred H. Hait, Esq. for leave to withdraw his appearance as counsel for Plaintiff, a Rule is granted on Douglas A. Smith, Plaintiff, and on Flying J, Inc., Defendant, to show cause, if any they have, why Fred H. Hait should not be granted leave to withdraw his appearance as counsel for Plaintiff. Written responses to the Motion and this Rule shall be filed with the Prothonotary of Cumberland County no later than A 0 days after service of the Motion and Rule. L 0 : [17 ` 11 OM LOOZ DOUGLAS A. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J, DEFENDANT 05-767 CIVIL TERM ORDER OF COURT AND NOW, this Z r day of November, 2007, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. Keith 0. Brenneman, Esquire, Chairman, shall be paid the sum of $50.00. /Keith 0. Brenneman, Esquire Court Administrator By the Edgar B. Bayley, sal ? o COP4 ii la,lo1 N h.- 'C. "? t.? k-- ? ?_ t? _. C.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. FLYING J, INC., Defendant No. 05-767-Civil Term MOTION FOR FINAL ORDER GRANTING LEAVE TO WITHDRAW APPEARANCE AS COUNSEL 1. The undersigned filed the attached Amended Motion for Leave to Withdraw Appearance As Counsel on 12/7/2007. 2. On 12/7/2007 Judge Edward Guido issued a Rule to Show Cause upon Plaintiff and Defendant to how cause why the undersigned should not be granted leave to withdraw his appearance as counsel for Plaintiff. 3. In accordance with usual practice, the Prothonotary mailed copies of the Rule to Show Cause to Douglas Smith, Plaintiff, and to James W. Creenan, counsel for Defendant by First Class Mail on or about 12/7/2007. 4. The undersigned mailed copies of the Rule to Show Cause to Douglas Smith, Plaintiff, and to James W. Creenan, counsel of record for Defendant, on 12/11/2007 by Certified Mail and by First Class Mail. The Certified Mailing sent to Plaintiff was returned undelivered by the Postal Service, but the copy sent by ordinary First Class Mail has not been returned. 5. Neither party has filed an answer or other written response to the Amended Motion. 6. Counsel for Defendant has informed the undersigned that he does not oppose the Motion. 7. Apart from an order by Judge Bayley vacating appointment of arbitrators, no other judge has entered any orders in this case. 8. Because it appears that the Motion For Leave to Withdraw is unopposed, the undersigned moves the Court for a final order permitting him to withdraw his appearance as counsel for Plaintiff. R uIly submitt red H. ait, I 4 Smigel, Anderson & Sacks, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) AFFIDAVIT I, undersigned, verify that any facts not of record set forth in the foregoing MOTION are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date Fred H. Hait, I # 3139'1 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street. 3id Floor Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff Civil Action-Law Vs. FLYING J, INC., Defendant No. 05-767-Civil Term CERTIFICATE OF SERVICE I hereby certify that concurrent with filing the foregoing Motion I am serving copies of same upon the following by First Class Mail addressed as follows: Douglas A. Smith, Plaintiff 138 Beetem Hollow Road Newville, PA 17241-9538 James W. Creenan, Esq. Counsel for Flying J, Inc. Wayman, Irvin & McAuley, LLC 1624 Frick Building 43 Grant Street Pittsburgh, PA 15219 Date: ?Ogwoow' Fred H. Hait, ID # 34331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) co 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Civil Action-Law Plaintiff Vs. FLYING J, INC., Defendant No. 05-767-Civil Term ORDER AND NOW, this day of ?counsel 8, it appearing that the Motion of Fred H. Hait, Esquire for for Plaintiff is unopposed, the Motion is hereby granted. J fly IqUI t; Li W? eo/Fri DOUGLAS A. SMITH, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-767 , 20 FLYING J, Defendant. RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: James W Creenan Esquire counsel for the -AtmUff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (wAdiow) is at issue. 2. The claim of plaintiff in the action is $ -less than $25.000. Apvroximately $2,000. The counterclaim of the defendant in the action is N/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Fred Hait, James W. Creenan WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. RespectfullyA 'fled, n, Esquire Creena rOURmmes for Defendant Flying J ORD T petition, , Esq., and AND NOW, , 200____, in consideration of the foregoing Esq., and captioned action (or actions) as prayed for. Esq., are appointed arbitrators in the above By the Court, EDGAR B. BAYLEY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe to Schedule Arbitration Hearing has been served on the following counsel on the 11/9 day of "?kra 2008: Douglas A. Smith pro se Plaintiff 138 Beetem Hollow Road Newville, PA 17241 WAYMAN, IRVIN & McAULEY, LLC BY: Ja Zesel W. Creenan,(FAquire for Defendant, Flying J, Inc. :249834.1 ? ° ? `? ??, ? -n ?? r.'- ' 41 b ? S . ? ?,,_ , -- .? W ? ?f s" . .?kt-? W w.A /'1 W V {ter f`_ ..-k.? i''? "{,{ , _. ?. ? ... : "r 1? _- ? .. . r7 *?. N ? N ? DOUGLAS A. SMITH, IN THE COURT OF?COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 05-767 20 FLYING J, Defendant. RULE 1312-1 The Petition for Appointment of Arbitrators shall be ubstantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: James W. Creenan, Esquire counsel for the Miff/ efendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (prAwtus) is kat issue. 2. The claim of plaintiff in the action is $ less than $25,000. Approximately $2,000. The counterclaim of the defendant in the action is N/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Fred Hait, James W. Creenan WHEREFORE, your petitioner prays your Honorable Court to appoint th?ee (3) arbitrators to whom the case shall be submitted. I RespectfulVM r4 . Creenan, Esquire for Defendant Flying J ORD T T AND NOW, jJJAIg::?M 1 3 200 5 , in consi lion of the foregoing petition, Esq., and Esq., and VaAAAA, Esq., are appoin arbitrators in the above captioned action (or acti s) as prayed for. By B. BA r ` i xf Q• s ;;? cxe N N IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, Plaintiff, vs. FLYING J, Defendant. CIVIL DIVISION NO.: 05-767 NOTICE OF DOCUMENTS HEARING INTENT TO OFFER AT ARBITRATION Filed on behalf of: Defendant, Flying J Counsel of Record for this Party: James W. Creenan, Esquire Pa. ID No. 79213 WAYMAN, IRVIN & McAULEY, LLC 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) :250731.1 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS A. SMITH, CIVIL DIVISION Plaintiff, NO.: 05-767 vs. FLYING J, Defendant. NOTICE OF INTENT TO OFFER DOCUMENTS AT ARBITRATION HEARING AND NOW, comes the Defendant, FLYING J, by and through its attorneys, James W. Creenan, Esquire, and Wayman, Irvin & McAuley, LLC, and, pursuant to the Pennsylvania Rules of Civil Procedure, hereby files the following Notice of Intent to Offer Documents at Arbitration Hearing: 1. Defendant will offer into evidence at the time of the hearing any or all fo the following documents: a. Personnel file of Douglas Smith; b. Flying J. shop service and work orders and related documentation for January 2004; C. Flying J. shop service and work orders and related documentation for February 2004; d. Flying J. shop service and work orders and related documentation for March 2004; e. Flying J. shop service and work orders and related documentation for April 2004; Flying J. shop service and work orders and related documentation for May 2004; g. Flying J. shop service and work orders and related documentation for June 2004; :250731.1 h. Flying J. shop service and work orders and related documentation for July 2004; L Flying J. shop service and work orders and related documentation for August 2004; Flying J. shop service and work orders and related documentation for September 2004. k. A complete copy of the Flying J's "Commissions and Bonuses Policy." 1. A copy of the Complaint in Arbitration filed by Douglas Smith vs. Flying J. 2. Defendant reserves the right to amend or supplement this Notice at any time up to and including the time of the hearing. 3. Defendant reserves the right to prepare a summary, exhibits and/or charts relating to the above exhibits in lieu of offering complete copies of all exhibits. Respectfully submitted, WAYMAN, IRVI4J & M(jAULEY, LLC By: for Defendant, Flying J :250731.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Intent to Offer Documents at Arbitration Hearing has been served on the following counsel on the r7)"day of RW 2008: Fred H. Hait, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 WAYMAN, IRVIN & McAULEY, LLC BY: Creenan, Esquire for Defendant, Flying J, Inc. :250731.1 0 C ? T? i•'T' -? - n 2z DOUGLAS A. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J, DEFENDANT 05-767 CIVIL TERM ORDER OF COURT AND NOW, this ZA day of April, 2008, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. Edward L. Schorpp, Esquire, Chairman, shall be paid the sum of $50.00. By the Court, By Edgar B. Bayley, J Edward L. Schorpp, Esquire Court Administrator C"Pies :sal 41-4 DO 0WC6 in Th y acid . Y FRCS 9ECORC 1 ttfl1slet Pa. Iwo. Fi?' ,-.-- nromonmaN ' LV cli David D. Bueff lProthonotag xirkS. SoFionage, ESQ So(icitor 775c o l§nee X Simpson I" Deputy Prothonotary Irene E. 9V orrow 2nd Deputy (t'rothonotary Office of the Prothonotary Cumber(and County, Tennsy(vania Os ' ` CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE -THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY 0 ne Courthouse Square 9 Suite 100 • Carfsfe, PA 17013 • (717) 240-6195 0 Fa:? (717) 240-6573