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Home My WebLink About01-1146DAVID M. KANE, Plaintiff SECCO, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :NO. 0/- IIq : CIVIL ACTION - LAW 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 attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 DAVID M. KANE, Plaintiff SECCO, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :NO. o/- //~6 ~ ~ : CIVIL ACTION - LAW COMPLAINT AND NOW comes Plaintiff, David M. Kane, by and through his counsel, Killian & Gephart, LLP, and does hereby file this Complaint and in support thereof avers as follows: 1. Plaintiff, DAVID M. KANE, is an adult individual currently residing at 424 West High Street, Hummelstown, Dauphin County, Pennsylvania 17036. 2. Defendant, SECCO, INC., is a Pennsylvania corporation engaged in the business o fproviding electrical contracting services with a principal place of business located at 1111 Primrose Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 3. In February, 1999, Mr. Kane was hired by SECCO, Inc., as a Residential & Light Commercial Sales Consultant. 4. According to the offer-of-employment letter bom Barry Kindt, President of SECCO, Inc., dated January 20, 1999, the terms and conditions of employment for Mr. Kane included an annual base salary of$18,200, paid $350 per week, plus commissions. A "draw" allowance of $250 weekly was also provided. (Exhibit A). 5. Commissions were to be calculated according to the Job Description and COMMISSION COMPENSATION PLAN attached to the offer-of-employment letter. (Exhibit A). 6. The COMMISSION COMPENSATION PLAN states, "Commissions are earned as soon as payment is received from the customer." (Exhibit A). 7. The COMMISSION COMPENSATION PLAN further states within this same section that "[t]he company and Sales Representative will balance the 'draw' account against earned commissions on a quarterly basis." (Exhibit A). 8. The COMMIS SION COMPENSATION PLAN states that "[t]he balance between the 'draw' account and the earned commissions are reconciled within 45 days at the end of each fiscal year." (Exhibit A). 9. Within the section entitled COMMISSION EVALUATION, of the COMMISSION COMPENSATION PLAN, it states that the commission amounts are "determined by multiplying the proper commission rate percentage by the estimated subtotal price prior to adding on the commission." (Exhibit A). 10. The proper commission rate percentage is based on the "as sold" gross margin percentage prior to commission. The "as sold" gross margin percentage is calculated by adding the overhead and profit-dollar mark-ups, then dividing the sum by the estimated selling price. The resulting percentage is the "as sold" gross margin percentage. According to the COMMISSION SCHEDULE TABLE, if the gross margin percentage is less than 23%, the commission rote is 0%. The rate of commission increases as the gross margin percentage increases, with the maximum commission rote set at 12% for a gross margin percentage in excess of 35%. (Exhibit A). 11. The COMMISSION COMPENSATION PLAN, within the PAYMENT SCHEDULE section, states, "Each Sales Representative will receive the commission on the 3~ payroll of the following month for all jobs invoiced the previous month. All commission payments are made on the 3~ payroll period of each month." (Exhibit A). 12. The COMMISSION COMPENSATION PLAN, further states, within the PLAN DURATION section, that "[t]his plan is effective beginning January 18, 1999. SECCO reserves the fight to discontinue or modify this plan at any time without notice and without penalty to SECCO." (Exhibit A). 13. Plaintiff received the fn~st reconciliation between the "draw" and earned commissions in September, 1999. On that date, he received a payment of $7,000 from Defendant, although Defendant's records indicate he had earned over $17,000 in commissions on sales through the end of July. (Records indicating commission earned during subsequent months were not available). (Exhibit B). 14. Defendant advised Plaintiffthat the $7,000 payment was a "partial payment" and that the remaining balance would be reconciled at the end of the year. 15. By December 31, 1999, no further reconciliation between the "draw" account and the commissions received was made, despite Defendant's statement and the express provision within the COMMISSION COMPENSATION PLAN requiting quarterly reconciliation. 16. In November, 1999, Plaintiff received a copy of the original offer-of- employment letter, which contained a handwritten alteration on the commission calculation page that was not made on the original offer-of-employment letter Mr. Kane had signed prior to commencing employment with SECCO, Inc. (Exhibit C) 17. The handwritten change stated that commissions were to be calculated according to the estimated gross margin amount, not the estimated subtotal price prior to adding on the commission, as previously stated. (Exhibit C). 18. This change effected a significant decrease in commissions earned by Mr. Kane as his commission would be calculated upon a substantially reduced basis. Originally, his commission was a percentage of the established subtotal price, which included an estimated gross margin amount. The change allowed for the commission to be calculated according to the gross margin amount alone. 19. The receipt of this modified letter in November, 1999, was the first notification Plaintiffreceived fxom Defendant of the changed calculation. 20. Defendant told Plaintiff that this change was retroactive to the date of hire. Therefore, all commissions earned between February, 1999, and November, 1999, as well as all future earnings, were to be based on the estimated gross margin mount calculation and not on the estimated subtotal price as set forth in the original offer letter. 21. Plaintiff continued his employment with Defendant until October 11, 2000, accepting the new commission calculation from November, 1999, forward. 22. The appropriate basis for calculation of Plaintiff's commission between February, 1999, and November, 1999, is the estimated subtotal price set forth in the original offer-of-employment letter and attached COMMISSIONCOMPENSATIONPLAN. (Exhibits A). Plaintiff is due in excess of $20,000 in commission 23. Consequently, compensation. 24. to Plaintiff. 25. herein. 26. Despite numerous demands, Defendant has not made any additional payments COUNT ONE Breach of Contract Plaintiffhereby incorporates paragraphs 1 through 24 as though fully set forth On or about January 20, 1999, Plaintiff and Defendant entered into an employment contract whereby Plaintiff would receive, as compensation, commission calculated by multiplying the proper commission rate by the estimated subtotal price prior to adding in the commission, in addition to a base salary of $18,500. 27. Plaintiff earned in excess of $27,000 in commissions from February 1999 through November 1999. 28. Defendant breached the employment contract by failing to fully compensate Plaintiff for commissions earned according to the employment contract. WHEREFORE, Plaintiff, David M. Kane, respectfully requests this Honorable Court enter judgment in his favor and against Defendant in an mount that does not exceed the statutory limit for compulsory arbitration plus costs and fees and such other relief as the Court deems just and proper. 29. herein. 30. COUNT TWO Wage Payment and Collection Act Plaintiffhereby incorporates paragraphs 1 through 28 as though fully set forth The offer-of-employment letter, dated January 20, 1999, and the attached Job Description and COMMISSION COMPENSATION PLAN (Exhibit A), contain the terms and conditions of employment that Mr. Kane agreed to upon signing the letter and accepting the position of Sales Consultant with SECCO, Inc. 31. Pursuant to 43 P.S. § 260.1 et seq., an employee is entitled to receive full payment of all back wages upon termination of employment by no later than the next pay period. 32. The term wages used in the Wage Payment and Collection Act includes commissions. 43. P.S. § 260.2(a). 33. Pursuant to 43 P.S. § 260.4, an employer is required to notify his employees at the time of hiring of the time and place of payment and the rate of pay and the amount of any fringe benefits or wage supplements to be paid the employee. The employer is also required to notify his employee of any change with respect to any of these itemsprior to the time of said change. 34. 43 P.S. § 260.7 prohibits any provision of the Act being, in any way, contravened or set aside by a private agreement. 35. From February, 1999, (date of hire) to November, 1999, (date of notification of modification), Plaintiff justifiably believed he was earning commissions at the rate set forth in the original offer letter. (Exhibit A) 36. Mr. Kane first received notification of the change in commission calculation when he was given a copy of the original offer letter and COMMISSION COMPENSATION PLAN in November, 1999, containing the aforementioned modified terms. 37. Although the COMMISSION COMPENSATION PLAN states that Defendant may discontinue or modify the plan at any time without notice, this claim is in direct conflict with 43 § 260.4 cited above. Therefore, this claim has no legal or binding effect as the Wage Payment and Collection Act expressly prohibits any private agreement from contravening a provision of the Act. 38. The Wage Payment and Collection Act allows for the modification of a term of an employment agreement, but the employee must be informed of the change when the change is made. 39. Defendant first informed Plaintiff of the alteration in November, 1999, and the change in calculation for commissions may only be in effect from that point forward. 40. Pursuant to 43 P.S. § 260.9(a), an employee is entitled to costs and reasonable attorneys' fees. 41. Pursuant to 43 P.S. § 260.10, an employee is also entitled to liquidated damages in an amount equal to 25% of the total amount of wages due, or $500, whichever is greater, if the employer is found to have unlawfully withheld wages. 42. Plaintiff is owed in excess of $20,000 for commissions earned yet unpaid for the period from February, 1999, to November, 1999, from Defendant. 43. Defendant has failed and refused to make any additional payments to Plaintiff for these back wages, constituting unlawful withholding of wages. 44. Defendant unlawfully withheld wages from Plaintiff and, therefore, owes Plaintiffliquidated damages in the amount of 25% of the wages due. WHEREFORE, Plaintiff, David M. Kane, respectfully requests this Honorable Court enter judgment in his favor and against Defendant in an amount that does not exceed the statutory limit for compulsory arbitration representing wages unlawfully withheld, liquidated damages in an amount of 25% of the wages unlawfully withheld, reasonable attorneys' fees and costs, and such other relief as this Court deems just and proper. Respectfully submitted, Dated: February 5'l , 2001 Michael ti. O Connor, Esquire Killian & Gephart, LLP Supreme Court I.D. #76127 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Plaintiff VERIFICATION I hereby verify that the statements of fact made in the foregoing document are tree and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. David Kane SECCO, INC. HEATING & COOLING- COMMERCIAL REFRIGERATION ELECTRICAL CONTRACTING- TELECOMMUNICATIONS CABLING FIBER OPTIC NETWORKS 1111 Primrose Avenue, Camp Hill, Pennsylvania 17011 (717) 737-2142 · FAX737-5235 Mr. David M. Kane 424 West High Street Hummelstown, PA 17036 Janumy 20, 1999 Tel. 717-583-0455 On behalf of SECCO, Inc., I am pleased to offer you the opportunity to fulfill the responsibilities and duties ora Residential & Light Commercial Sales Consultant. A copy of the Job Description is attached for your review. This is a Base Salary with Commission opportunity. The commission plan allows for a weekly "draw" against future commissions. The annual base salary for this position is $18,200 lmid weekly at $350 per week with a "draW' allowance of $250 per week. Commissions are subject to our Rules and will be paid based on the Job Description attached hereto. As a coworker of SECCO, Inc., you will be eligible to participate in the following benefits, upon completion of your 90-day probationary period. HMO or POS Health Care Plan through U.S. Healthcare · One week paid vacation/year earned a~er 6 months of full lime employmem · Two weeks paid vacation/year after 5 continuous years of full time employment · Continuing Education reimbursement · 401 (k) Plan according to plan guidelines (Plan Year starts June 1) 125 Cafeteria Plan This offer is not an employment contract. No contract of employment other than "at will" has been expressed or implied, and no circumstances arising out of your employment will alter the "at will" employment relationship unless expressed in writing, with the understanding specifically set forth and signed by the corporate officers of SECCO, Inc. David, we are truly excited about the prospects of you joining our team. We believe your experience and skills, coupled with your eagerness and potential to learn will be very beneficial to ns all. Please call me at once with any questions. This offer of employment requires a written acceptance by not later than January 25, 1999. We look forward to hearing from you. We would anticipate a start date of Februa~ 8, 1999, or sooner. Sincerely, Barry Kindt President ************************************************************************ I, David Kane, (/~ccept ( ) reject this offer to become a Residential/Light Commercial Sales Consultant as outlined above and in the Job Description. Si~ature Equsl Opportunity Employer Date SECCO, INC., HVAC/R DEPARTMENT INSTALLATION SALES REPRESENTATIVE COMMISSION COMPENSATION PLAN PURPOSE: SECCO's ownership recognizes that our Installation Sales Representative makes a significant contribution to the success of our organization. The intent of the Commission Compensation Plan is to reward the Sales Representative for "selling" the value of SECCO's expertise and services, thereby increasing the revenues and gross margin comribution to the Company and maximizing the benefit to the Company. QUALIlelCATIONS: All Installation Sales Representatives qualify for the commission compensation plan. The Sales Representative will solicit his/her own bidding opportunities or may be assigned to a bid by the HVAC/R Manager. COMPENSATION PLAN: The Installation Sales Representative is compensated with a base salary with commission and bonus opportunity. The commission plan allows for a weekly "draw" against future commissions. The base salary is $350 per week with a "draw" allowance of $250 per week. Commissions are earned as soon as payment is received from the customer. The bonus opportunity is determined by reaching minimum new order gross margin targets at the end of the fiscal year. The company and Sales Representative will balance the "draw" account against earned commissions on a quarterly basis. If the earned commissions exceed the "draw" account, the company will issue a paycheck within 45 days for the difference. Should the "draw" account exceed the earned commissions during quarter, the amount owed to the company will be rolled over into the next quarter. Should the Installation Sales Representative elect to leave the employ of SECCO, any outstanding balance between the draw account and earned commissions will be owed and paid to the employee or Company, depending on whether the draw account is greater than or less than the earned commissions to date. The balance between the "draw" account and the earned commissions are reconciled within 45 days at the end of each fiscal year. COMMISSION EVALUATION: The commission compensation is determined by the estimated job costs, the "as sold" gross margin percentage prior to commissions, and the corresponding commission percentage rate. The HVAC installation market allows for a gross margin percentage range of 23-35% (prior to commissions). 01~78/99 COMMISSION SCHEDULE TABLE AS SOLD GM % COMMISSION RATE <23%* 0% 23%<GM%<25% 6% 25%<GM%<27%* 8% 27%<GM%<30%* 9% 30%<GM%<32% * 10% 32%<GM%<35%* 11% GM%>35 % 12 % The commission amounts are determined by multiplying the proper commission rate percentage by the estiraated subtotal price prior to adding on the commission. Gross margin dollars is equal to the sum of the overhead and profit dollar mark-ups. Gross margin percentage rate is determined by adding the overhead and profit dollar mark-ups and dividing the sum by the estimated selling price prior to commissions. The commission amount is then added to the subtotal to determine the final selling price. The commission amount is a job cost expense. It is the last amount added to determine the final selling price. The HVAC/R Manager may make final determination of the mark-up rate for all jobs prior to bid or during negotiations. Upon award of a contract, a final estimate will be made to reflect the "as sold" gross margin and the commission amount will be adjusted should there be a difference between the "as bid" and "as sold" gross margins. It is understood that some large commercial jobs may fall under the minimum gross margin goal for any commission to apply. SECCO's management may opt to negotiate a commission with the-Sales Rep for those particular jobs. It is understood that developing accurate estimates is a basic job requirement of the Sales Representative. SECCO's Executive Committee reserves the right to deny payment of an earned commission on a job if it is determined that the original "as bid" gross margin is at risk due to errors or omissions in the original estimate. BONUS EVALUATION: The Installation Sales Representative may qualify for a bonus at the end of each qualifying year if the total gross margin contribution of his/her new orders (as sold, not performed) reaches a minimum gross margin contribution goal. As the actual new order gross margin contribution exceeds the minimum goal, the bonus will incrementally increase at certain levels per the table below. 01/18/99 ACTUAL GROSS MARGIN BONUS AMOUNT CONTRIBUTION :'$120,000 $3,000 >$145,000 $3,500 :'$170,000 $4,000 :-$195,000 $4,500 >$220,000 $5,000 >$245,000 $5,500 Each $25,000 Increment +$750 beyond $270,000 C}tANGE ORDERS: Should the Sales Representative be directly involved in the submittal of a change order and develop the estimate for the change order and submit it to the customer, the Sales Representative wilt qualify to receive a commission for that change order at the appropriate commission rate per the Commission Table. Should a change order decrease the original contract value, the commission due will be decreased by multiplying the value of the credit's gross margin by the "as sold" commission rate. SECCO recognizes that the Sales Representative may have little or no involvement with change orders once the job starts and offers no commission for such change orders generated by others. CUSTOMER SATISFACTION SURVEYS: The Sales Representative is responsible for mailing and collecting the customer satisfaction surveys as a part of his/her basic job duties. The Sales Representative will submit a report at the bi-weekly sales meetings on the status of all outstanding customer satisfaction surveys. It is the company's goal to have a return rate of at least 75% of surveys. The Sales Representative will make the necessary follow-up calls to enable the company to attain this goal. If the Sales Representative does not make an acceptable follow-up effort (in the opinion of the HVAC/R Manager) to any customer, then the HVAC/R Manager may deduct $25 from the Sales Representative's earned commission on that particular customer(s) job(s). PAYMENT SCHEDULE: Each Sales Representative will receive the commission on the 3Td payroll of the following month for all jobs invoiced the previous month. All commission payments are made on the 3*a payroll period of each month. The Sales Representative must be a SECCO employee of record at the time of the payment. The commission is not "earned" until both the payment date and that the payment has been received from the customer are satisfied. Should the Sales Representative leave the employ of SECCO prior to the payment qualification date, no moneys will be due to the former employee. Any eligible bonus a_mounts will be paid kg got later than August 15th of each year. The Installation Sales Representative must be an employee of record on the due date in order to qualify for the bonus payment. The bonus amount is not earned until the due date. Should the Installation Sales Representative leave the employ of SECCO prior to the due date, no moneys will be owed to the former employee. BAD DEBTS: SECCO makes every effort to collect an outstanding invoice for work performed. It may be necessary to involve the Sales Rep to help collect overdue invoices. 01/18/99 Should the company exhaust all avenues of collecting an overdue debt and decide to "write off' the debt, any commission previously paid for that contract will be deducted from the current month's eligible commission. Again, the commission is not "earned" until both the~payment date and that the payment has been received from the customer criteria are met. Bad debts are classified as a cost of sales and will be deducted from the gross margin contribution. PLAN DURATION: This plan is effective beginning January 18, 1999. SECCO reserves the right to discontinue or modify this plan at any time without notice and without penalty to SECCO. 01/18/99 Mr. David M. Kane 424 West High Street Hummelstowa, PA 17036 Tel. 717-583-0455 January 20, 1999 On behalf of SECCO, Inc., I am pleased to offer you the oppommity to fiflfill the responsibilities and duties ora Residential & Light Commercial Sales Consultant. A copy of the Job Description is attached for your review. This is a Base Salary with Commission oppommity. The commission plan allows for a weekly "draw" against future commissions. The mmual base salary for this position is $18,200 paid weekly at $350 per week with a "draw" allowance of $250 per week Commissions are subject to our Rules and will be paid based on the Job Description attached hereto. As a coworker of SECCO, Inc., you will be eligible to participate in the following benefits, upon completion of your 90-day probationary period. · HMO or POS Health Care Plan through U.S. Healthcare · One week paid vacation/year earned after 6 months of fifll time employment · Two weeks paid vacation/year after 5 continuous years of full time employment · Continuing Education reimbursement · 401 0c) Plan according to plan guidelines (Plan Year starts June 1) · 125 Cafeteria Plan This offer is not an employment contract. No contract of employment other than "at will" has been expressed or implied, and no circumstances arising out of your employment will alter the "at will" employment relationship unless expressed in writing, with the understanding specifically set forth and signed by the corporate officers of SECCO, Inc. David, we are truly excited about the prospects of you joining our team. We believe your experience and skills, coupled with your eagerness and potential to learn will be very beneficial to us ail. Please call me at once with any questions. This offer of employment requires a written acceptance by not later than January 25, 1999. We look forward to heating from you. We would anticipate a start date of February 8, 1999, or sooner. Sincerely, Barry Kindt President ************************************************************************ I, David Kane, ( ) acoept ( ) rejectthis offer to become a Residential/Light Commercial Sales Consultant as outlined above and in the Job Description. Signature Date INSTALLATION SALES REPRESENTATIVE SECCO, INC., HVAC/R DEPARTMENT COMMISSION COMPENSATION PLAN PURPOSE: SECCO's ownership recognizes that our Installation'Sales Representative makes a significant contribution to the success of our organization. The intent of the Commissic~n Compensation Plan is to reward the Sales Representative for "selling" the value of SECCO's expertise and services, thereby increasing the revenues and gross marg/n contribution to the Company and maximizing the benefit to the Company. QUALIlVlCATIONS: All Installation Sales Representatives qualify, for the commission compensation plan. The Sales Representative wilt solicit his?her own bidding opportunities or may be assigned to a bid by the HVAC/R Manager. COMPENSATION PLAN: The Installation Sales Representative is compensated with a base salary with commission and bonus opportunity. The comrnission plan allows for a weeldy "draw" against future commissions. The base salary is S350 per week wkh a "~traw' allowance of $250 per week. Commissions are earned as soon as payment is received fi.om the customer. The bonus opportunity is determined by reaching minimum new order gross margin targets at the end of the fiscal year. The company and Sales Representative will balance the "draw"' account against earned commissions on a quarterly basis. If the earned commissions exceed ~he "draw" account, the company will issue a paycheck within 45 days for the difference. Should the "draw" account exceed the earned commissions during queer, the amount owed to the company will be rolled over into the next quarter. Should the Installation Sales Representative elect to leave the employ of SECCO, any outstanding balance between the draw account and earned commissions will be owed and paid to the-employee or Company, depending on whether the draw account is greater tha or less than the earned commissions to da~e. The balance bern'eon the "draw" account and ~he earned commissions are reconciled witl-fin 45 days at the end of each fiscal }'ear. COMMISSION EVALUATION: The commission compensation is determined by the estimated job costs, the "as sold" gross margin percentage prior to commissions, and the corresponding comh'dssion percentage rate. The HVAC installation market allows for a ~oss margin percentage range of 23-35% (prior to commissions). 01/1&.'99 CO.¥~flSSION SCHEDULE TABLE AS SOLD GM 0`/0 COMM. ISSION KATE <23%* 0% 23%<GM%<25% 6% 25%<GM%<27%* 27%<GM%<30%* 30%<GM%<320,/0* 10% 32%<GM%<35%* 11% GM%>35% I 12% The commission amounts are determined bv multiplying the proper commission rate percentage by the estimated~~e to adding on the coraraission. Gross margin dollars is equal to the sum of the overhead and profit dollar mark-ups. Gross margin percentage rate is determined by adding the overhead and profit dollar mark-ups and dividing the sum by the estimated selling price prior to commissions. The commission amount is then added to the subtotal to determine the final selling price. The commission amount is a job cost expense. It is the last amount added to determine the final selling price. The H-VAC/R Manager may make final determination of the mark-up rate for all jobs prior to bid or during negotiations. ETon award ora contract, a final estimate will be made to reflect the "as sold" gross margin and the commission amount will be adjusted should there be a diff'erence between t-he "as bid" and "as sold" gross mar~ns. It is understood that some large commercial jobs may fall under the minimum gross margin goal for any commission to apply. SECCO's management may opt to negotiate a commission with the Sales Rep for those particular jobs. It is understood that developing accurate estimates is a basic job requirement of the Sales Representative. SECCO's Executive Comrnittee reserves the right to deny payment of an earned commission on a job if it is determined that the original "as bid" gross margin is at risk due to errors or omissions in the original estimate. BONUS EVALUATION: The Installation Sales Representative may qualifi,., for a bonus at the end of each qualifying )'ear if the total gross margin comribution ofhis;her new orders (as sold, not performed) reaches a minimum gross margin contribution goal. As the actual new order gross margin contribution exceeds the minimum goal, the bonus will Lncrementally increase at certain levels per the table below. 0 l '18 '9 9 iACTUAL GROSS MA. RGIN t BONUS A.MOU':.~T i CONTRIBUTION ..j >$120,000 I S3,000 >$145,000[ S3,500 >$170,000 $4,000 >$195,000 >$220,000 $5,000 >S245,000 $5,500 Each $25,000 Increment +$'750 beyond $270,000 CItANGE ORDERS: Should the Sales Representative be directly involved in the submittal cfa change order and develop the estimate for the change order and submit it to the customer, the Sales Representative will qualify to receive a commission for that chanue order at the appropriate commission rate per the Commission Table. Should a chan~e order decrease the original contract value, the commission due will be decreased by multiplying the value of the credit's gross mar~n by the "as sold" commission rate. SECCO recognizes that the Sales Represemative may have little or no involvement vrith change orders once the job starts and offers no commission for such change orders generated by others. CUSTOMER SATISFACTION SURVEYS: The Sales Representative is responsible for mailing and collecting the customer satisfaction surveys as a part of his/her basic job duties. The Sales Representative will submit a report at the bi-weeldy sales meetings on the status of all outstanding customer satisfaction surveys. It is the company's goal to have a return rate of at least 75% of surveys. The Sales Representative will make the necessary follow-up calls to enable the company to attain this goal. If the Sales Representative does not make an acceptable follow-up effort (in the opinion of the HVAC/R Manager) to any customer, then the HVAC/R Manager may deduct $25 fi.om the Sales Representative's earned commission on that particular customer(s)job(s). PAYMENT SCHEDULE: Each Sales Representative will receive the commission on the 3't payroll of the following month for all jobs invoiced the prex4ous month. All oom~ssion payments are made on the 3rd payroll period of each month. The Sales Representative must be a SECCO employee of record at the time of the payment. The commission is not "earned" until both the payment date and that the payment has been received fi.om the customer are satisfied. Should the Sales Representative leave the employ of SECCO prior to the payment qualification date, no moneys will be due to the former employee. Any eligible bonus amounts will 'be paid by not later than August t 5'-"' of each year. The Installation Sales Representative must be an employee of record on the due date in order to qualify for the bonus payment. The bonus amount is not earned until the due date. Should the Installation Sales Representative leave the employ of SECCO prior to the due date, no moneys ~vill be owed to the former employee. BAD DEBTS: SECCO makes every effort to collect an outstanding invoice for work performed. It may be necessary to involve the Sales Rep to help collect overdue invoices. 01,'18 '9 9 Should the company exhaust all avenues of collecting an overdue debt and decide to "write off" the debt, any commission previously paid for that contract will be deducted from the current month's eligible commission. Again, the commission is not "eamed'~ until both the payment date and that the payment has been received from the customer criteria are met. Bad debts are classified as a cost of sales and will be deducted from the gross matin contribution. PI_AN DUR.4,TION: This plan is effective beginning January 18, 1999. SECCO reserves the right to discontinue or modify this plan at any time without notice and without penalty to SECCO. 0I.'15,'99 SHERIFF'S RETURN - REOULJtR CASE NO: 2001-01146 P COMMONWEALTH OF PENNSYLVANIA: cOUNTY OF CUMBERLAND KANE DAVID M VS SECCO INC K ' CP~L. MICHAEL BARRICK sheriff or Deputy sheriff of County,Pennsylvania' who being duly sworn according to law, cumberland was served upon says, the within COMPLAINT & NOTICE the SECCO INC 1st day of March , 200__~1 at 0010:50 HOURS, on the ~ DEFENDANT ' at 1111 PRIMROSE AVE by handing to CAMP HILL, PA 17011 RHODY ROSS (CONTROLLER) together with a true and attested copy of COMPLAINT & NOTICE and at the same time directing Hi___~s attention to the contents thereof. sheriff's Costs: 18.00 Docketing 7.44 Service .00 Affidavit 10.00 surcharge .00 sworn and Subscribed to before me this ~ day of ~ ~l~0/ A.D. --~-7-~rothonot ary ~ine o3/o2/2ooz KILLIAN & GEPHART ~ By:~ DAVID M. KANE., SECCO, INC., Plaintiff Defendant : N THE COURT OF COMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 01-1146-CIVIL : TO: NOTICE TO PLEAD Michael J. O'Connor, Esquire Kiilian & Gephart Attorneys for Plaintiff You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. DATED3 1 · Milakovic, Esquire BECKLEY & MADDEN 212 North Third Street Post Office Box 11998 Harrisburg, PA 17108 (717) 233-7691 Attorney for Defendant DAVID M. KANE, Plaintiff Vo SECCO, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1146-CIVIL ANSWER TO COMPLAINT, WITH NEW MATTER AND COUNTERCLAIM 1. Admitted, on information and belief. 2. Admitted.' 3. Admitted. 4. Admitted in part and denied in part. The substantive text of this paragraph of Plaintiff's Complaint is admitted. The reference to "Exhibit A" is denied, however, inasmuch as Exhibit "A" to Plaintiff's Complaint is an incomplete document which omits material portions of the document with which Plaintiff was presented and which Plaintiff signed. The avemients of paragraph 5 of this Answer are hereby adopted by reference and incorporated herein. 5. Denied. Exhibit "A" to Plaintiff's Complaint is incomplete. Attached to this An- swer, as Exhibit "A," is the complete document presented to Plaintiff and which Plaintiff signed on January 20, 1999. Particularly, the last page of Exhibit "A" hereto -- which is omitted from the exhibit attached to Plaintiff's Complaint -- shows how commissions were to be calculated. Before Plaintiff signed the document, he and Mr. Barry Kindt, of SECCO, Inc., discussed this last page and Mr. Kindt described to Plaintiff how commissions were to be calculated. Plaintiff indicated at that time that he understood. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted.' By way of further answer, that is a typographical error and it conflicts with the last page of the document, which last page indicates that the commission rate is multi- plied by the estimated gross margin. Mr. Kindt, of SECCO, Inc., went over this last page with Plaintiff on the day Plaintiff signed the agreement, prior to Plaintiff signing, and Plaintiff indi- cated that he understood that his commission amounts would be determined by multiplying his commission rates by the estimated gross margins. 10. Admitted. By way of further answer, the commission rate thus arrived at was to be multiplied by the estimated gross margin to determine commission amounts payable, and Plaintiff understood this. The averments of paragraph 9 of this Answer are hereby adopted by reference and incorporated herein. 11. Admitted. 12. Admitted. -2- 13. The first sentence of this paragraph of Plaintiff's Complaint is admitted. Further, it is admitted that Plaintiff received the $7,000.00 payment on that date, in addition to the approximately $7,500.00 draw against commissions Plaintiff had been receiving weekly for this time period. It is denied that the records attached as Exhibit "B" to Plaintiff's Complaint indicate anything at all; those records are in error and do not track either the agreed-upon method of cal- culating commissions or even the method Plaintiffis now claiming should have applied. 14. Denied. To the contrary, Defendant advised Plaintiff that the $7,000.00 payment was an estimated payment and that the balance would be reconciled at the end of the year. 15. Denied. To the contrary, reconciliations were regularly presented to Plaintiff. 16. Denied as stated. By way of further answer, the handwritten notation was made by Mr. Barry Kindt, of SECCO, Inc., immediately after it was pointed out to him that the page contained a typographical error and conflicted with the last page of the same document. Plaintiff knew, understood all along, and agreed up front, however, that his commissions were always being calculated in accordance with that last page. 17. Denied as stated. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 18. Denied. The avem~ents of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. -3- 19. Denied. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 20. Denied. Defendant never stated that the handwriting was a "change." To the contrary, Defendant informed Plaintiff that the handwriting was placed there to make the docu- ment internally consistent and to reflect what the parties had actually agreed. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 21. Denied as stated. It is true that Defendant was fired as of October 11, 2000, and that Plaintiff does not appear to be contesting in this action what Plaintiff was paid for the period November 1999 through October 11, 2000. It is denied, however, that there ever was a "new" commission calculation. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 22. Denied. Exhibit "A" to Plaintiffs Complaint is an incomplete document. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incor- porated herein. 23. Denied. Plaintiff is due nothing. To the contrary, Plaintiff has been overpaid in the amount of $2,004.92. 24. Denied. Receipt of this Complaint is the first time Defendant has ever heard of such a "demand" from Plaintiff. It is admitted that Defendant will not make any additional pay- ment to Plaintiff, as nothing is due. -4- ANSWER TO COUNT ONE BREACH OF CONTRACT 25. The ave,t~ents of paragraphs 1-24 of this Answer are hereby adopted by reference and incorporated herein. 26. Denied. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 27. Denied. To the contrary, Plaintiff actually earned $15,315.84 in commissions. 28. Denied. To the contrary, Defendant paid Plaintiff $2,004.92 in excess of earned commissions. WHEREFORE, Defendant respectfully requests that Count One of Plaintiff's Complaint be dismissed with prejudice. ANSWER TO COUNT TWO WAGE PAYMENT AND COLLECTION LAW 29. The averments of paragraphs 1-28 of this Answer are hereby adopted by reference and incorporated herein. 30. Denied. The ave.tlents of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 31. This is a legal conclusion to which no response is required. -5- 32. This is a legal conclusion to which no response is required. 33. This is a legal conclusion to which no response is required. 34. This is a legal conclusion to which no response is required. 35. Denied. The averments of paragraphs 5, 9, and 16 of this Answer are hereby adopted by reference and incorporated herein. 36. Denied. The averments of paragraphs 5, 9, 16, and 20 of this Answer are hereby adopted by reference and incorporated herein. 37. This is a legal conclusion to which no response is required. 38. This is a legal conclusion to which no response is required. 39. Denied. The avermems of paragraphs 5, 9, 16, and 20 of this Answer are hereby adopted by reference and incorporated herein. 40. This is a legal conclusion to which no response is required. 41. This is a legal conclusion to which no response is required. 42. Denied. Plaintiffis owed nothing. -6- 43. Denied. Plaintiff, prior to institution of the current suit, never raised these issues, and, accordingly, Defendant has not "failed and refused" as alleged. By way of further answer, Defendant admits that it is not willing to make any additional payments to Plaintiff because Plaintiff is owed nothing. 44. This is a legal conclusion to which no response is required. WHEREFORE, Defendant respectfully requests that Count Two of Plaintiff's Complaint be dismissed with prejudice. NEW MATTER 45. reference. The averments of paragraphs 1 through 44 of this Answer are hereby adopted by 46. Defendant has paid Plaintiff in full according to the parties' agreement. WHEREFORE, Defendant respectfully requests that PlaintifFs Complaint be dismissed with prejudice. -7- COUNTERCLAIM 47. The averments of paragraphs 1 through 46 of this Answer and New Matter are hereby adopted by reference. 48. Defendant has overpaid Plaintiff in the amount of $2,004.92. WHEREFORE, .Defendant demands judgment in its favor and against Plaintiff in the amount of $2,004.92. D A TED:3 / ~Zz./o / Of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, Thomas A. Beckley Attorneys for Plaintiff -8- HAR'22-200~ 08:55 SECCO iNC. ?~? ?3? 5235 . P,02/02 VERIFICATION I hereby verify that 1 am an adult individual; that I am atithorlz~d ~o make this verification for SEC:CO, thc.; and that the facts set tbrth in the foregoing pleading ar~ true to the best of my Imowtcdgc. t understand that false statemonLs herein a.re made subject :o the penalties of 1S P~. C.$. §490~, relating to un,sworn falsification to ~uthotid~. TOTAL P,02 SECCO, INC. HEATING & COOLING m COMMERCIAL REFRIGERATION ELECTRICAL CONTRACTING ~ TELECOMMUNICATIONS CABLING FIBER OPTIC NETWORKS 1111 Primrose Avenue, Camp Hill, Pennsylvania 17011 (717)737-2142 · FAX 737-5235 Mr. David M. Kane 424 West Hish Street Hummelstown, PA 17036 January 20, 1999 Tel. 71%583-0455 On behalf of SECCO, Inc., I am pleased to offer you the opportunity to fulfill the responsibilities and duties ora Residential & Light Commercial Sales Consultant. A copy of the Job Description is attached for your review. This is a Base ~iary with Commission opportanity. The commission plan allows for a weekly "draw" against future commissions. The annual base salary for this position is $18,200 paid weekly at $350 per week with a "draw" allowance of $250 per week. Commissions are subject to our Rules and will be paid based on the Job Description attached hereto. As a coworker of SECCO, Inc., you will be eligible to participate in the following benefits, upon completion of your 90-day probationary period. · lIMO or POS Health Care Plan through U.S. Healthcare · One week paid vacatioa/year earned after 6 months of full time employment · Two weeks paid vacation/year after 5 continuous years of full time employment · Continuing Education ~imbursement · 401 (k) Plan according to plan guidelines (Plan Year starts June 1) · 125 Cafeteria Plan This after/s not an employment contract. No contract of employment othe~ than "at will" has been expressed or implied, and no circumstances arising out of your employment will alter the "at will" employment rehtionship unless expressed in wfitinE, with the underslanding specifically set fmlh and sisned by the corlxrate officers of SECCO, Ina ............ -David,- we are ~ excited aleut-the ga~ospeets of Iron ]¢n~ng our-t~va7 We-t~lleve y ffth-~-x~'enc~-an~'-- skills, coupled with your eagerness and potential to learn ~ be very beneficial to us all. Please call me at once with any questions. This offer of employment requires a writlen acceptance by not later than January 25, 1999. We look forward to hearing from you. We would anticipate a start date of February 8, 1999, or sooner. Sincerely, Barry Kindt President I, David Kane, ( ~accept ( ) reject this offer to become a P~side Ccmsultant as outlined above and in the Job Description. Signature SECCO, INC., HVAC/R DEPARTMENT INSTALLATION SALES REPRESENTATIVE COMMISSION COMPENSATION PLAN PIJRPOSE: SECCO's ownership recognizes that our Installation Sales Representative makes a significant contribution to the success of our organization. The intent of the Commission Compensation Plan is to reward the Sales Representative for "selling" the value of SECCO's expertise and services, thereby increasing the revenues and gross margin contribution to the Company and maximizing the benefit to the Company. QUALIlelCATIONS: All Installation Sales Representatives qualify for the commission compensation plan. The Sales Representative will solicit his/her own bidding opportunities or may be assigned to a bid by the HVAC/R Manager. COMPENSATION PLAN: The Installation Sales Representative is compensated with a base salary with commission and bonus opportunity. The commission plan allows for a weekly "draw" against future commissions. The base salary is $350 per week with a "draw" allowance of $250 per week. Commissions are earned as soon as payment is received from the customer. The bonus opportunity is determined by reaching minimum new order gross margin targets at the end of the fiscal year. The company and Sales Representative will balance the "draw" account against earned commissions on a quarterly basis. If the earned commissions exceed the "draw" account, the company will issue a paycheck within 45 days for the difference. Should the "draw" account exceed the earned commissions during quarter, the amount owed to the company will be rolled over into the next quarter. Should the Installation Sales Representative elect to leave the employ of SECCO, any outstanding balance between the draw account and earned commissions will be owed and paid to the employee _or Company, depending on whether the draw account is greater than or less than the earned commissions to date. 'the balance between the "draw" account and the earned commissions are reconciled within 45 days at the end of each fiscal year. COMMISSION EVALUATION: The commission compensation is detefnfined by the estimated job costs, the "as sold" gross margin percentage prior to commissions, and the corresponding commission percentage rate. The I-IVAC installation market allows for a gross margin percentage range of 23-35% (prior to commissions). COIVI?vflSSION SCHEDULE TABLE AS SOLD GM % COMMISSION RATE <23%* 0% 23%<GM%<25% 6% 25%<GM%<27%* 27%<GM%<30%* 9% 30%<GM%<32%* 10% 32%<GM%<35%* 11% GM%>35% 12% The commission mounts are determined by mukiplying the proper commission rate percentage by the estimated subtotal price prior to add#Tg on the commission. Gross margin dollars is equal to the sum of the overhead and profit dollar mark-ups. Gross margin percentage rate is determined by adding the overhead and profit dollar mark-ups and dividing the sum by the estimated selling price prior to commissions. The commission amount is then added to the subtotal to determine the final selling price. The commission amount is a job cost expense. It is the last amount added to determine the final selling price. The HVAC/R.Manager may make final determination of the mark-up rate for all jobs prior to bid or during negotiations. Upon award ora contract, a final estimate will be made to reflect the "as sold" gross margin and the commission amount will be adjusted should there be a difference between the "as bid" and "as sold" gross margins. It is understood that some large commercial jobs may fall under the minimum gross margin goal for any commission to apply. SECCO's management may opt to negotiate a commission with the Sales Rep for those particular jobs. It is understood that developing accurate estimates is a basic job requirement of the Sales Representative. SECCO's Executive Committee reserves the right to deny payment of an earned commission on a job if it is determined that the original "as bid" gross margin is at risk due to errors or omissions in the original estimate. BONUS EVALUATION: The Installation Sales Representative may qualify for a bonus at the end of each qualifying year if the total gross margin contribution of his/her new orders (as sold, not performed) reaches a minimum gross margin contribution goal. As the actual new order gross margin contribution exceeds the minimum goal, the bonus will incrementally increase at certain levels per the table below. 01/18/99 ACTUAL GROSS MARGIN BONUS AMOUNT CONTltmUTION >$120,000 $3,000 >$145,000 $3,500 >$170,000 $4,000 >$195,000 $4,500 >$220,000 $5,000 >$245,000 $5,500 Each $25,000 Increment +$750 beyond $270,000 CItANGE ORDERS: Should the Sales Representative be directly involved in the submittal ora change order and develop the estimate for the change order and submit it to the customer, the Sales Representative will qualify to receive a commission for that change order at the appropriate commission rate per the Commission Table. Should a change order decrease the original contract value, the commission due will be decreased by multiplying the value of the credit's gross margin by the "as sold" commission rate. SECCO recognizes that the Sales Representative may have little or no involvement with change orders once the job starts and offers no commission for such change orders generated by others. CUSTOMER SATISFACTION SURVEYS: The Sales Representative is responsible for mailing and collecting the customer satisfaction surveys as a part of his/her basic job duties. The Sales Representative will submit a report at the bi-weekly sales meetings on the status of all outstanding customer satisfaction surveys. It is the company's goal to have a return rate of at least 75% of surveys. The Sales Representative will make the necessary follow-up calls to enable the company to attain this goal. If the Sales Representative does not make an acceptable follow-up effort (in the opinion of the ~IVAC/R Manager) to any customer, then the I-IVAC/R Manager may deduct $25 from the Sales Representative's earned commission on that particular customer(s) job(s). PAYMENT SC}tEDULE: Each Sales Representative will receive the commission on the 3~ payroll of the following month for all jobs invoiced the previous month. All commission payments are made on the 3ra payroll period of each month. The Sales Representative must be a SECCO employee of record at the time of the payment. The commission is not "earned" until both the payment date and that the payment has been received from the customer are satisfied. Should the Sales Representative leave the employ of SECCO prior to the payment qualification date, no moneys will be due to the former employee. Any eligible bonus amounts will be paid by not later than August 15th of each year. The Installation Sales Representative must be an employee of record on the due date in order to qualify for the bonus payment. The bonus amount is not earned until the due date. Should the Installation Sales Representative leave the employ of SECCO prior to the due date, no moneys will be owed to the former employee. BAD DEBTS: SECCO makes every effort to collect an outstanding invoice for work performed. It may be neeessa~ to involve the Sales Rep to help collect overdue invoices· 01/1&99 Should the company exhaust all avenues of collecting an overdue debt and decide to 'h~'ite off" the debt, any commission previously paid for that contract will be deducted fi.om the current month's eligible commission. Again, the commission is not "earned" until both the payment date and that the payment has been received f~om the customer criteria are met. Bad debts are classified as a cost of sales and will be deducted from the gross margin contribution. PLAN DURATION: This plan is effective beginning January 18, t999. SECCO reserves the right to discontinue or modify this plan at any time without notice and without penalty to SECCO. $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ . $ $ $ $ $ $ S $ S $ $ $ $ $ S $ $ $ $ SALES VOLUME 325,000 325,000 350,000 350,000 400,000 400,000 400,000 450,000 450,000 450,000 500,000 500,000 5O0,000 550 000 550 000 550 000 600 000 600 000 600 000 650 000 650 O00 650 000 700 000 700,000 700,000 750,000 750,000 750,000 800,000 800,000 800,000 850,000 850,000 850,000 900,000 900,000 900,000 SECCO, INC INSTALLATION SALES COMPENSATION AVG. GM % GM $$ 23.0% $ 74,750 25.0% $ 81,250 23.0% $ 80,500 25.0% $ 87,500 23.0% $ 92,000 25.0% $100,000 27.0% $108,000 23.0% $103,500 BASE bonus plan COMMISSION COMMISSION % $$ WAGE 7.0% $ 5,233 $18,200 9.0% $ 7,313 $18,200 7.0% $ 5,635 $18,200 9.0% $ 7,875 $18,200 7.0% $ 6,440 $18,200 9.0% $ 9,000 $18,200 10.0o/0 $ 10,800 $18,200 7.0% $ 7,245 $18,200 ANNUAL Non-funded EARNINGS earnings $ 23,433 $ 18,200 $ 25,513 $ 18,200 $ 23,835 $ 18,200 $ 26,075 $ 18,200 $ 24,640 $ 18,200 $ 27,200 $ 18,200 $ 29,000 $ 18,200 $ 25,445 $ 18,200 25.0% $112,500 27.0% $121,500 23.0% $115,000 25.0% $125,000 27.0% $135,000 23.0% $126,500 25.0% $137,500 27.0% $148,500 23.0% $138,000 25.0% $150,000 27.0% $162,000 23.0% $t49,500 25.0% $t62 500 27.0% $175 500 23.0% $161 000 25.0% $175 000 27.0% $189 000 23.0% $172 500 25.0% $187 50O 27.0% $2O2 50O 23.0% $184 300 25.0% $200000 27.0% $216 300 23.0% $195 500 25.0% $212 500 27.0% $229 500 23.0% $207 ~O0 25.0% $22.~ D00 27,0% $242 000 9.0% 10.0% 7.0% 9.0% 10.0% 7.0% 9.0% 10.0% 7.0% 9.0% 10.0% 7.0% 9.0% 10.0% 7.0% 9,0% lO.0% 7.0% 9.0% 10.0% 7.0% 9.0% 10.0% 7.0% 9.0% 10.0% 7.0% 9.0°/0 10.0% 10,125 $18,200 $ 28,325 $ 18,200 12, t50 $18,200 $ 3,000 $ 33,350 $ 21,200 8,050 $18,200 $ 26,250 $ 18,200 1%250 $18,200 $ 3,000 $ 32,450 $ 21,200 13,500 $ 18,200 $ 3,000 $ 34,700 $ 21,200 8,855 $18,200 $ 3,000 $ 30,055 $ 21,200 12,375 $18,200 $ 3,000 $ 33,575 $ 21,200 14,850 $ 18,200 $ 3,500 $ 36,550 $ 21,700 9,660 $18,200 $ 3,000 $ 30,860 $ 21,200 13,500 $18,200 $ 3,500 $ 35,200 $ 21,700 16,200 $18,200 $ 3,500 $ 37,900 $ 21,700 10,465 $18,200 $ 3,500 $ 32,165 $ 21,700 14,625 $18,200 $ 3,500 $ 36,325 $ 21,700 17,550 $ 18,200 $ 4,000 $ 39,750 $ 22,200 11,270 $18,200 $ 3,500 $ 32,970 $ 21,700 15,750 $18,200 $ 4,000 $ 37,950 $ 22,200 18,900 $18,200 $ 4,000 $ 41,100 $ 22,200 12,075 $18,200 $ 4,000 $ 34,275 $ 22,200 16,875 $18,200 $ 4,000 $ 39,075 $ 22,200 20,250 $18,200 $ 4,500 $ 42,950 $ 22,700 12,880 $18,200 $ 4,000 $ 35,080 $ 22,200 18,000 $ 18,200 $ 4,500 $ 40,700 $ 22,700 21,600 $18,200 $ 4,500 $ 44,300 $ 22,700 13,685 $ 18,200 $ 4,500 $ 36,385 $ 22,700 19,125 $18,200 $ 4,500 $ 41,825 $ 22,700 22,950 $18,200 $ 5,000 $ 46,150 $ 23,200 14,490 $18,200 $ 4,500 $ 37,190 $ 22,700 20,250 $ 18,200 $ 5,000 $ 43,450 $ 23,200 24,300 $ 18,200 $ 5,000 $ 47,500 $ 23,200 CERTIFICATE OF SERVICE I, John G. Milakovic, Esquire, hereby certify that on this day a tree and correct copy of the foregoing document was served upon the person and in the manner indicated below: SERVICE BY FIRST CLASS MAIL DATED: 3/7--=/0 / Michael J. O'Connor, Esquire Killian & Gephart, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 akovicj DAVID M. KANE, Plaintiff SECCO, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-1146 CIVIL _. _. : CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NOW comes Plaintiff, David M. Kane, by and through his counsel, Killian & Gephart, LLP, and does hereby file this Answer to Defendant's New Matter and Counterclaim and in support thereof avers as follows: 45. Plaintiff hereby incorporates paragraphs 1 through 44 of his Complaint as though fully set forth herein. 46. Denied. It is denied that Defendant has paid Plaintiff in full according to the parties agreement. WHEREFORE, Plaintiff, David M. Kane, respectfully requests this Honorable Court enter judgment in his favor and against Defendant in an amount that does not exceed the statutory limit for compulsory arbitration representing wages unlawfully withheld, liquidated damages in an amount of 25% of the wages unlawfully withheld, reasonable attorneys' fees and costs, and such other relief as this Court deems just and proper. ANSWER TO DEFENDANT'S COUNTERCLAIM 47. Plaintiff hereby incorporates paragraphs 1 through 44 of his Complaint as though fully set forth herein. 48. Denied. It is denied that Defendant has overpaid Plaintiff in the amount of $2,004.92. Strict proof is demanded at the time of trial. WHEREFORE, Plaintiff, David M. Kane, respectfully requests this Honorable Court enter judgment in his favor and against Defendant in an amount that does not exceed the statutory limit for compulsory arbitration representing wages unlawfully withheld, liquidated damages in an amount of 25% of the wages unlawfully withheld, reasonable attorneys' fees and costs, and such other relief as this Court deems just and proper. Respectfully submitted, Michael~J. '~C?o 'tm e~r, Esquire Killian & Gephart 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I. D. #76127 Dated: April ~___, 2001 Attorneys for Plaintiff VERIFICATION I, Michael J. O'Connor, hereby verify that I am the attorney for Plaintiff, David Kane. I have sufficient knowledge or information based upon investigation into this matter by my client, to take this Verification. I hereby verify that the statements in the foregoing Answer to Defendant's New Matter and Counterclaim are tree and correct to the best of my knowledge, information, and belief. I understand that false statements contained herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relative to unswom falsification to authorities. Micha¢ 1 J~~~quire Counsel for Plaintiff CERTIFICATE OF SERVICE I, MICHAEL J. O'CONNOR, ESQUIRE, do certify that I served a tree and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: John G. Milakovic, Esquire Beckley & Madden Cranberry Court 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 Dated: Apfil_~__,2001 Michael j.~Co~ 'nnc~r, Esquire Killian & Gephart 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 DAVID M. KANE, Plaintiff SECCO, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-1146 CIVIL : CIVIL ACTION - LAW PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the verification of Plaintiff, David M. Kane, in place of the verification of Michael J. O'Connor, Esquire which was attached to Plaintiff's Answer to Defendant's New Matter and Counterclaim in the above-captioned case. Respectfully submitted, Dated: May [( , 2001 Killian & Gephart 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I. D. #76127 Attorneys for Plaintiff DAVID M. KANE, Plaintiff SECCO, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1146 CIVIL CIVIL ACTION - LAW PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the verification of Plaintiff, David M. Kane, in place of the verification of Michael J. O'Connor, Esquire which was attached to Plaintiff s Answer to Defendant's New Matter and Counterclaim in the above-captioned case. Respectfully submitted, Dated: May [( , 2001 Killian & Gephart 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I. D. #76127 Attorneys for Plaintiff VERIFICATION I hereby verify that the statements of fact made in the foregoing document are tree and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unswom falsification to authorities. David M. Kane DAVID M. SECCO, RULE 1312-1. KANE, Plaintiff INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1146 CIV~ H~ 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: Michael J. O' Connor , counsel for the plaintiff/~f~mlan~in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ less than $25,000. The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: John G. Milakovic, Esquire, Beckley & Madden, Cranbex~y Court, 212North Third Street~ P.O. Box 11998. Harrisburc~, PA 17108-1998 WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ORDER OF COURT AND NOW, ~//~-Z~.~-~/ // , l~f2002, in consi~ration of the ~ , foregoing petition,~~~ /;~' Esq., ~~,~ actmns) as prayed f0n By the~ ) ) ) ) In _The Court of Common Pleas of Cu~erland County, Pennsylvania / / 4-0 OATH We do solemnly swear (or affirm) chat we will sumoort, obey and defend the Constitution of the United States and the ConstitUtion of t~is Comm. on- wealth and that we will discharme the d~ AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make ~he following award: (Note: If damages for delay are awarded they shall be separately s~a~ed.) ' ' ' Date of Hearing:~~ ~ ~0TZcz oF ~-~z OF ~o~, the q ~ay of ~ a~rd ~as entered upon the dockee and Parties or nheir arto~evs, no~zce thereof given by ~ii ~o the Arbitrators' compensation to be paid upon appeal] s_Jqo. - D,~p~gq DAVID M. KANE, Plaintiff V. SECCO, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION-LAW : :NO. 01-1146 Civil : : PRAECIPE TO THE PROTHONOTARY: Pursuant to Pa.R.Civ. P. 1307(c), enter judgment on the attached award of the arbitrators, no appeal having been taken within thirty (30) days after the entry of the award on the docket, as follows: Judgment in favor of the Plaintiff and against the Defendant in the amount of $1,200.00 on the Plaintiff's claims; judgment in favor of the Plaintiff and against the Defendant on the Defendant's counterclaim. Dated: Of Counsel Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Respectfully submitted, Thomas A. Beckley f.._._.~- Jstl~ G. Milakovic Attorneys for Defendant OATH In The Court of Co~ton Pleas of C,-~herland County, Pennsylvania :,,o. o~ , / I ¢0 ~'~.~l"rJ~r/_~_ ._ We do soi--~nly swear (or affirm) chat we will suooort, obey and defend the Constitution of the United States and the ConstitUtion of t~is Common- wealth and that we will discharge the dut:ies I~ ~z~ ~ ..'~ ,~ r~-- We~., th~5~rsigned arbitrators, having been duly appointed and swom (or affimed), ~ke ~he follo~ng award: (~oee: [~ d~g~ ~or delay ar~ awar~od, ehey ~hali ~eparae~17 s~a~ed.) . Arbitrator, dissents. (Insert dame~ ~' ' applicable. ) Date of Hearing:~~ ~~_~~~ NOTICE 0F ~RY 0F AW~ N~, ~he q day of ~ ' ~ X' a~ , ~.21., ~he above a~rd was entered upon the docket and notice ~hereof given by ~il to the parties or ~heir at~o~eys. Arbitrators' compensation to be paid upon appeal: $ Jqo.- By: CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated. FIRST CLASS MAlL Michael J. O'Connor, Esquire Killian & Gephart 218 Pine Street P.O. Box 886 Harrisburg, PA 17108 Dated: J~G. Milakovic