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HomeMy WebLinkAbout14-6098 Supreme Cou _ .ennsylvania COU O •CO1mm� For Prothonota O �leas ry Use only: 7 f� �g Docket No: CUft71� RLA D j County v 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 VJ Complaint 0 Writ of Summons ® Petition E Q Transfer from Another Jurisdiction E3 Declaration of Taking CLead Plaintiff's Name: Lead Defendant's Name: MARY K. KEPHART PRO QUALITY CLEANING, LLC T I Dollar Amount Requested: within arbitration limits Are money damages requested? Yes No IJ O (check one) Ooutside arbitration limits N Is this a Class Action Suit? ❑ Yes J No Is this an MDJAppeal? © Yes El No A Name of Plaintiff/Appellant's Attorney: CHARLES R. ROSAMILIA,JR., ESQUIRE 0 Check here if you have no attorney(are a Self-Represented [Pro Sel 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 0 Buyer Plaintiff Administrative Agencies CJ Malicious Prosecution 0 Debt Collection: Credit Card ® Board of Assessment Q Motor Vehicle 0 Debt Collection:Other 0 Board of Elections Nuisance 0 Dept.of Transportation Premises Liability © Statutory Appeal:Other S J Product Liability (does not include E © Employment Dispute: mass tort) © Slander/Libel/Defamation Discrimination C . ® Other. 0Employment Dispute:Other 0Zoning Board UNPAID COMMISSIONS T � Other: Other: O MASS TORT Asbestos Tobacco Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste 13 Ejectment © Other: J [3Common Law/Statutory Arbitration B Eminent Domain/Condemnation [3 Declaratory Judgment © Ground Rent Mandamus ❑❑ Landlord/Tenant Dispute ❑ Non-Domestic Relations El Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure:Commercial Quo Warranto hJ Dental ® Partition ®Replevin Legal © Quiet Title Other: Q Medical n Other: ❑ Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION—LAW MARY K. KEPHART, ) Plaintiff, PRO QUALITY CLEANING, LLC, and NICK CARTER, 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 REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 7S�a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION—LAW MARY K. KEPHART, ) Plaintiff, ) V. ) No. PRO QUALITY CLEANING, LLC, and ) NICK CARTER, ) Defendant. ) COMPLAINT AND NOW comes the Plaintiff, Mary K. Kephart, by and through her counsel, Charles R. Rosamilia, Jr., Esquire, and Rosamilia, Brungard& Rosamilia, and files the following Complaint, and in support thereof, avers as follows: 1. The Plaintiff, Mary K. Kephart, is an adult individual with a current address of 1459 Clover Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. The Defendant, Pro Quality Cleaning, LLC, (hereinafter"Pro Quality") is a limited liability company, organized pursuant to the laws of the Commonwealth of Pennsylvania, providing commercial janitorial services, with a principal place of business at 114 East Allen 0 Street, Mechanicsburg, Cumberland County, Pennsylvania 17011. 3. . The Defendant,Nick Carter, is an adult individual, who,to the knowledge and information of the Plaintiff, is the sole owner and decision-maker at Pro Quality Cleaning, LLC. Carter's last known address is 114 East Allen Street, Mechanicsburg, Cumberland County, Pennsylvania 17011. 4. Plaintiff began employment with the Defendant Pro Quality on or about August 8, 2012 as Marketing Manager for Defendant. 5. As per the oral agreement between the Plaintiff and Defendant Carter, Plaintiff was tasked with presenting proposals to various local businesses in an effort to expand services to new customers and increase revenues for Defendant Pro Quality. 6. In exchange for such marketing services, Plaintiff was to be paid an hourly rate of pay, along with commission based upon the following specifics: a. For recurring contracts: i. Twenty percent(20%) of the first month's income; and ii. Three and a half percent (3'/2 %) of each additional month's income for a maximum of twenty-four(24) months. b. For one-time service contracts: i. Eight percent (8%) of total income. 7. Plaintiff separated from employment with Defendant Pro Quality in or around July 2013. 8. At the time of Plaintiff's separation, there were fifteen (15) open recurring accounts with local businesses that Plaintiff had acquired on behalf of Defendant Pro Quality, for which continuing commission payments were/are due. 9. Additionally, Plaintiff had presented thirty-six (36)business proposals to various local businesses, which were pending at the time of Plaintiff's separation from employment with Defendant Pro Quality. 10. Plaintiff has made demand to Defendant Pro Quality, through Defendant Carter, for payment of the outstanding commission wages. 11. To date, Defendant Pro Quality, through Defendant Carter, has refused to make payment to Plaintiff for commission wages earned by Plaintiff and due to her. Count I: Violation of the Pennsylvania Wage Payment and Collection Law Mary K. Kephart v. Pro Quality Cleaning,LLC 12. Plaintiff hereby incorporates each of the preceding paragraphs of the within pleading as if each were set forth more fully herein. 13. The Pennsylvania Wage Payment and Collection Law(WPCL), 43 Pa.C.S. § 260.1, et. seq., requires the payment of any and all outstanding wages to separated employees "not later than the next regular payday of his employer on which such wages would otherwise be due and payable...." 43 Pa.C.S. § 260.5(a). 14. "Wages"are defined by the WPCL to include "all earnings of an employe, regardless of whether determined on time,task, piece, commission or other method of calculation." 43 Pa.C.S. § 260.2a. 15. To date, Plaintiff is due the sum of$10,496.14 on commissions for contracts existing with Defendant Pro Quality at the time of her separation from employment. 16. Defendant Pro Quality is in violation of the WPCL based upon Defendant Pro Quality's failure to pay said commission wages to Plaintiff when they became due. 17. The WPCL allows for the award of reasonable attorney's fees to a plaintiff with a claim under the WPCL. See 43 Pa.C.S. § 260.9a(f). 18. Additionally, the WPCL allows for the award of liquidated damages in the amount of twenty-five percent (25%) of the unpaid wages or$500.00, whichever is greater. See 43 Pa.C.S. § 260.10. WHEREFORE, the Plaintiff respectfully requests judgment in her favor and against the Defendant Pro Quality, LLC, in the amount of$10,496.14, along with liquidated damages of twenty-five percent (25%), reasonable attorney's fees, and costs of litigation, along with any additional relief this Honorable Court deems to be just. Count II: Violation of the Pennsylvania Wage Payment and Collection Law Mary K. Kephart v. Nick Carter 19. Plaintiff hereby incorporates each of the preceding paragraphs of the within pleading as if each were set forth more fully herein. 20. "Under Pennsylvania law, when a corporation fails to pay wages and benefits that it owes its employees, the corporation's top officers can be held personally liable for the non- payments." Belcufine v. Aloe, 112 F.3d 633 (Third Circuit 1997). 21. Defendant Nick Carter serves as the top officer of Defendant Pro Quality, and to the information and belief of Plaintiff, is the sole decision-maker regarding the payment of employee wages. 22. As such, and pursuant to existing case law, Defendant Carter is personally liable for the unpaid wages to Plaintiff and accompanying violations of the WPCL. WHEREFORE, the Plaintiff respectfully requests judgment in her favor and against the Defendant Nick Carter, in the amount of$10,496.14, along with liquidated damages of twenty- five percent(25%), reasonable attorney's fees, and costs of litigation, along with any additional relief this Honorable Court deems to be just. Count III: Unjust Enrichment Mary K. Kephart v. Pro Quality Cleaning,LLC 23. Plaintiff hereby incorporates each of the preceding paragraphs of the within pleading as if each were set forth more fully herein. 24. Plaintiff, through the submission of proposals to various businesses in the local area, conferred a benefit upon Defendant Pro Quality. 25. As a result of said proposals, Plaintiff believes that Defendant Pro Quality has entered into service contracts with various local businesses. 26. Defendant Pro Quality has accepted and appreciated the benefit of Plaintiff's actions. 27. Plaintiff has been denied potential commissions totaling over$80,000.00 due to the actions of Defendant Pro Quality. 28. It would be inequitable for Defendant Pro Quality to accept and retain said benefits under the within circumstances without payment of value to Plaintiff. WHEREFORE, Plaintiff, Mary K. Kephart, respectfully demands judgment in her favor and against Defendant Pro Quality Cleaning, LLC, in an amount not in excess of the applicable arbitration limits, along with costs and any other relief this Honorable Court deems to be just and equitable. Count IV: Breach of Contract Mary K. Kephart v. Pro Quality Cleaning,LLC 29. Plaintiff hereby incorporates each of the preceding paragraphs of the within pleading as if each were set forth more fully herein. 30. As per the terms of Plaintiff's oral employment agreement with Defendant Pro Quality, Plaintiff was to be compensated as per the terms of commission stated in Paragraph 6, supra. 31. Defendant Pro Quality has breached the terms of said employment agreement by failing to pay commission pursuant to the above-described terms when it became due. WHEREFORE, Plaintiff Mary K. Kephart respectfully demands judgment in her favor and against the Defendant, Pro Quality Cleaning, LLC, for an amount not in excess of the applicable arbitration limits, along with costs and any other relief this Honorable Court deems to be just. Respectfully ubrnitted, Charles R. Rosamilia, J ./Esquire 241 West Main Street Lock Haven, PA 17745 (570)748-5572 1010212014 1123 ROSMilla&&UWd f AMM 743 M F.UUVIUUV VERIFICATION STATEMENT I, MARY K. KEPHART, verify that the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. i understand that false statements herein are made subject to the penalties of 18 PA. C.S. Section 4904, relating to unsworn falsification to authorities. WAXt &�t DATE: `' MARY K9PHAPW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION — LAW MARY K. KEPHART, Plaintiff, v. PRO QUALITY CLEANING, LLC, and NICK CARTER, Defendant. PREACIPE TO RE -INSTATE COMPLAINT Please re -instate the above referenced Complaint. Respectfully s • mi . -d, ROSA LI , B' NGARD OSAMILIA Chart ' : Rosamilia, E uire Attorney for Plaintiff 241 West Main Street Lock Haven, PA 17745 (570) 748-5572 I.D. No. 27619 11 (ISIS /lett •3j36)23 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff � t THE PRO I i1Uk Jody S Smith Chief Deputy Richard W Stewart Solicitor OFF: OF THE S!!ERIFF 23114 DEC 15 PM 3: 23 C1t PB NNSYCOUNTY Mary K Kephart vs. Pro Quality Cleaning LLC (et al.) Case Number 2014-6098 SHERIFF'S RETURN OF SERVICE 12/09/2014 03:15 PM - Deputy Christopher Sharpe, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Nick Carter, Owner, who accepted as "Adult Person in Charge" for Pro Quality Cleaning LLC at 114 East Allen Street, Mechanicsburg Borough, Mechanicsburg, PA 17055. CHRIST ¢1' IER SHARPE, DEPUTY 12/09/2014 03:16 PM - Deputy Christopher Sharpe, being duly sworn according to law, served the requested Complaint & Notice by "personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Nick Carter at 114 East Allen Street, Mechanicsburg Borough, Mechanicsburg, PA 17055. C RISTOP R SHARPS, DEPUTY SHERIFF COST: $55.79 SO ANSWERS, December 10, 2014 RON R ANDERSON, SHERIFF (c) C ountySu to Sheriff, Teleosoft, Inc. MARY K. KEPHART : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO:14-6098 PRO QUALITY CLEANING, LLC :CIVIL ACTION - LAW and NICK CARTER c'a fll r ri1 Defendant ,_ 7. 7) c-) DEFENDANTS' PRELIMINARY OBJECTIONS r� --- - rt TO PLAINTIFF'S COMPLAINT T — AND NOW, comes the Defendants, by and through their attorney, Mark K -c Emery, Esquire, and files these Prelimianry Objections to Plaintiffs Complaint, as follows: I. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNTS I, II AND IV. 1. Plaintiff's complaint for breach of contract and violation of Pennsylvania's Wage Payment and Collection Law is premised upon an alleged breach of Plaintiff's oral employment agreement. 2. Plaintiff asserts the terms of `such oral employment agreement in Paragraphs 5 and 6, setting for the rates of commissions to be paid. 3. Plaintiff asserts that she separated from employment with Defendant in July, 2013, and is demanding payment of commissions for periods of time after her date of separation. 4. Plaintiff does not set forth any term of her employment agreement whereby the parties jointly agreed and intended that Plaintiff would be entitled to commission payments after she separated from employment. 5. As Plaintiff has not alleged a term of employment whereby the parties agreed commissions would be paid after her separation of employment, Plaintiff has failed to set forth a cause of action for either breach of contract or violation of the Wage Payment and Collection Law for which relief may be granted. WHEREFORE, Defendants respectfully request this Honorable Court dismiss Counts I, II and IV of the Complaint. II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT III. 6. Plaintiff alleges a claim for unjust enrichment for alleged and prospective sales, which occurred after she admittedly separated from employment with Defendant. 7. No cause of action exists for the unjust enrichment claim asserted by Plaintiff. WHEREFORE, Defendants respectfully request this Honorable Court dismiss Counts III of the Complaint. Respectfully submitted, LAW OFFICES OF MARK K. EMERY B DATE: December 22, 2014 Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Defendants CERTIFICATE OF SERVICE AND NOW, this 22nd day of December, 2014, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Defendants' Preliminary Objections to Plaintiff's Complaint by mailing a true and correct copy via United States first class mail, addressed as follows: Charles R. Rosamilia, Jr., Esquire 241 West Main Street Lock Haven, PA 17745 LAW OFFICES OF MARK K. EMERY Mark K. Emery