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HomeMy WebLinkAbout01-1053Michael S. Travis ID No. 77399 4076 Market Street, Suite 209 Camp Hill, PA 17011 (717) 731-9502 MICHAEL SCHRIM, PLAINTIFF RIVERSIDE HEARING SERVICES, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-1053 : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED : NOTICE TO PLEAD TO: Michael Schrim, c/o J. Jay Cooper, Esquire GOLDBERG, KATZMAN & SHIPMAN, PC. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 You are hereby notified to plead to the enclosed Answer and New Matter within twenty (20) days of service hereof or a default may be entered against you. Respectfully submitted, ~S. Travis 4076 Market Street, Suite 209 Camp Hill, PA 17011 (717) 731-9502 ID No. 77399 Attorney for Defendant Michael S. Travis ID No. 77399 4076 Market Street, Suite 209 Camp Hill, PA 17011 (717) 731-9502 MICHAEL SCHRIM, PLAINTIFF RIVERSIDE HEARING SERVICES, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-1053 : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ; ANSWER TO COMPLAINT AND NEW MATTER AND NOW, comes the Defendant, Riverside Hearing Services, Inc., by and through its attorney Michael S. Travis and answers as follows: 1 - 2. Admitted on information and belief. 3. It is specifically denied that plaintiff`was hired as a consultant. Strict proof is demanded at trial. 4. It is denied that initial pay for the plaintiffwas $150.00 per week while he trained as a consultant. Plaintiff`began as an apprentice on January 27, 1999 at a weekly salary of $150.00, as requested by plaintiff so that he could maintain unemployment benefits. 5. Denied that plaintiff was given a raise of $400.00 per week. Plaintiff`changed to full commission status at that time. Denied that plaintiff was given two weeks paid vacation. Paid vacation is not offered by defendant. 6. It is denied that the $400.00 per week would be deferred until such time as plaintiff passed a license screening test. Passing of a screening test has no bearing on compensation by defendant. 7. Denied that plaintiff passed part of his test in October of 1999, plaintiffwas ineligible to take the test because he was not sponsored. 8. It is denied that defendant discharged plaintiff`without prior notice on April 6, 2000. Plaintiff was discharged for repeated violations on company policy. 9. Defendant is without information or knowledge to admit or deny the allegation of paragraph 9 and the same is denied. Strict proof if demanded at trial if relevant. 10. It is specifically denied that commissions are due to plaintiff. All commissions have been paid. Denied that a salary or benefits were due plaintiff as a commissioned salesman. 11. Admitted on infommtion and belief. By way of further answer, defendant denies that plaintiff is entitled to the commissions, wages, or vacation pay demanded. 12. Denied that the sums are owed plaintiff as follows: (a) Denied that commission sales are owed totaling $6,071.95; pursuant to company policy and agreement of the parties, no payment was due the following individuals for the following reasons: Francis Kennedy did not pay for services. Ida Soerzimer did not pay for services. Marion Ernest was not fit for a hearing aid by plaintiff and the customer did not follow up her appointment. Elizabeth Lorenz was not handled by the plaintiff. William Jameson purchased his heating aid from another salesperson. Anna Grissimer is not a valid account. Earl Frady was not fit for a hearing aid by plaintiff and the customer did not follow-up his appointment. (b) Denied that plaintiff is entitled to salary as a commissioned salesman. (c) Denied that plaintiff is entitled to paid vacation; Paid vacation is not offered by defendant. (d) Denied that plaintiff is entitled to $264.88 relating to a sale to Mr. Paul Weaver on which plaintiff was paid a commission. Mr. Weaver's account was not paid in full, the arrangement by which the defendant withheld the $264.88 was by agreement of the parties. Denied that the action was taken without permission or right to do so. (e) Denied that the total amount due plaintiff is $27,536.83 for the reasons stated above. ANSWER TO COUNT I - BREACH OF CONTRACT 13. The answers contained in paragraphs 1 -12 are incorporated by reference as though set forth in full. 14. Paragraph 14 contains conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that the averments are factual, it is denied that defendant breached a contract of employment for damages totaling $27,536.89. WHEREFORE, the defendant, Riverside Hearing Services, Inc., prays this Honorable Court to dismiss the complaint of plaintiff, and award defendant counsel fees and costs and such other relief as the Court deems fair and appropriate. ANSWER TO COUNT II - BREACH OF PENNSYLVANIA WAGE COLLECTION LAW 15. The answers to Paragraphs 1 -14 are incorporated herein as if set forth in full. 16. Plaintiffhas stated a conclusion of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that the avenfsent is factual, it is denied that defendant owes the sum of $27,536.83. 17. Plaintiff has stated a conclusion of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that the averment is factual, it is denied that plaintiff is entitled to liquidated damages under the Pennsylvania Wage Payment and Collection Law 43 P.S. § 260.10, et seq. 18. Plaintiff has stated a conclusion of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that the averment is factual, it is denied that plaintiff is entitled to reasonable counsel fees in connection with the claim. WHEREFORE, defendant prays this Honorable Court dismiss the claim of plaintiff and award defendant counsel fees and costs and such other relief as the Court deems fair and appropriate. full. NEW MATTER 19. The answers contained in Paragraphs 1 -18 are incorporated herein as if set forth in 20. The plaintiff has failed to state a cause of action upon which relief may be granted. 21. Investigation and discovery may indicate that the applicable statute of limitation expired before the institution of this action. 22. Answering defendant did not breach any contract at any time relevant to the cause of action alleged by plaintiff. 23. Investigation and discovery may indicate that plaintiff has contractual obligations owing the defendant. 24. Investigation and discovery may reveal that the conduct of other persons, individuals or entities produced conduct intervening or superseding the damages alleged by plaintiff. 25. The plaintiff is not entitled to contractual compensation under the doctrine of failure of consideration. 26. The plaintiff is not entitled to contractual compensation as payment has been made if due. 27. Investigation and discovery may indicate that plaintiff is not entitled to recover under 43 P.S. § 260.1 et seq. WHEREFORE, Answering defendant denies any and all obligation as stated in the complaint and prays that this Honorable Court dismiss the complaint with prejudice and award counsel fees and costs and such other relief as the Court deems fair and appropriate. Respectfully submitted, ~ael S. Yravis Attorney for Defendant, Riverside Hearing Services, Inc. VERIFICATION On behalf of Riverside Hearing Services, Inc., I verify that the statements made in this Answer and New Matter are tree and correct and that I am authorized to respond on behalf of the defendant. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. DATED: William E. Kovach, on behalf of Riverside Hearing Services, Inc. CERTIFICATE OF SERVICE I, Michael S. Travis, certify that I have this day served a true and correct copy of the foregoing document by first class mail, postage prepaid, on the following person, addressed as follows: J. Jay Cooper, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 Dated: J- 7 $- o / By:/~~.~.. r ~t~Not~61-ff.. Travis · 77399 4076 Market Street, Suite 209 Camp Hill, PA 17011 (717)731-9502 Fax 731-9511 Attorney for Defendant J. Jay Cooper, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney LD. #31720 Attorneys for Plaintiff MICHAEL SCHRIM, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-1053 RIVERSIDE HEARING SERVICES, INC., ' DEFENDANT CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Michael Schrim, by his attorneys, Goldberg, Katzman & Shipman, P.C., and who files the following Reply to Defendant's New Matter: 19. The allegations in the Complaint, Paragraphs 1-18, are hereby incorporated as fully as if set forth herein. 20. Said allegation constitutes a conclusion of law to which no response is required. If a response is required, Plaintiff asserts that he has stated a cause of action upon which relief may be granted. 21. Said allegation constitutes a conclusion of law to which no response is required. If a response is required, it is denied that any applicable statute of limitations has expired. 22. Said allegation constitutes a conclusion of law to which no response is required. If a response is required, the Defendant did, in fact, breach a contract as set forth in the Complaint in this matter. 23. Defendant. 24. Plaintiff has performed any and all contractual obligations which he owed to the Denied. No other persons, individuals, or entities have undertaken any conduct which intervenes or supersedes the damages alleged to be caused to the Plaintiff by the Defendant. 25. Said allegation constitutes a conclusion of law to which no response is required. If a response is required, the contractual compensation set forth in the Complaint is supported by consideration. 26. Denied. As set forth in the Complaint, Defendant has not paid all sums due and owing to the Plaintiff. 27. Denied. As alleged in the Complaint, Plaintiff has set forth a valid cause of action and is emitled to recover under the provisions of the Pennsylvania Wage Collection Law, 43 P.S. §260.1, et seq. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. Date: q-{,.~ ~[ By: 61068.1 J. Jay~0ol~p er~ s qui'r e 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D. #31720 Attorneys for Plaintiff, Michael Schrim VERIFICATION I, MICHAEL SCHRIM, hereby acknowledge that I am the Plaintiff in this action, that I have read the foregoing document, and that the facts stated therein are true and correct to the best of my knowledge, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: MICHAEL SCHRIM CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first class postage, prepaid, as follows: Michael S. Travis, Esquire 4076 Market Street, Suite 209 Camp Hill, PA 17011 GOLDBERG, KATZMAN & SHIPMAN, P.C. Date: By: J. JILy, jZ~p~ Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D. #31720 Attorneys for Plaintiff J. Jay Cooper, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D. #31720 Attorneys for Plaintiff MICHAEL SCRIM, PLAINTIFF RIVERSIDE HEARING SERVICES, INC., DEFENDANT IN :ira couR r oF co ,, ON 'LEAS CU E ANO COUNTY, }'EN S V A No. ,- ota CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 1701:t (800) 990-9108 J. Jay Cooper, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D. #31720 Attorneys for Plaintiff MICHAEL SCHRIM, PLAINTIFF RIVERSIDE HEARING SERVICES, INC., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Michael Schrim, by his attorneys, Goldberg, Katzman & Shipman, P.C., and who represents as follows: 1. The Plaintiff is Michael Schrim, an adult individual residing at 43 Old Stone House Road, Carlisle, Cumberland County, Pennsylvania. 2. The Defendant is Riverside Hearing Services, Inc., a Pennsylvania corporation with its principal office located at 5405 Jonestown Road, Suite 109, Harrisburg, Pennsylvania, 17112. At all times relevant hereto, Defendant did business in Cumberland County and maintained an office at 401 E. Louther St., Carlisle, Pennsylvania. 3. On or about December 24, 1998, the Plaintiffwas hired by the Defendant as a consultant in the Defendant's business of selling hearing aids and other hearing-assistance devices. 4. The initial pay for the Plaintiff was $150.00 per week, which was to be paid while he was in training as a hearing aid consultant. 5. On or about April 17, 1999, Plaintiff was given a raise to $400.00 per week, plus commissions earned on sales of hearing aids and other devices to customers of the Defendant. The Plaintiff was also promised two weeks paid vacation at that time by Mr. Kovach, President of the Defendant. 6. Mr. Kovach further advised the Plaintiffthat his weekly salary of $400.00 per week would be deferred until such time as the Plaintiffpassed his licensing test with the Pennsylvania Department of Health. 7. The Plaintiffpassed part of that test in October 1999 and was scheduled to take the remaining part that he had not passed on April 12, 2000. 8. On April 6, 2000, Defendant, without notice, discharged Plaintifffrom employment with the Defendant. 9. The Plaintifftook his licensing test on April 12, 2000, passed the test, and has received his license from the State. 10. At the time of his discharge by the Defendant, the Plaintiff was due and owed commissions on various sales made during the teim of his employment with the Defendant, had not received any of the $400.00 per week wages that were promised to him, and had not been paid any vacation pay as agreed to in April 1999. 11. The Plaintiff has made written demand upon the Defendant for payment of the commissions, wages, and vacation pay, but the Defendant has failed to pay same and persists in that refusal. 12. (a) The monies that the Plalntiffis owed by the Defendant are as follows: Plaintiff is owed commissions totaling $6,071.95 on the following sales: Date of Sale 09/02/99 12/03/99 03/20/00 03/27/00 03/29/00 02/25/00 02/12/00 Name of Client Amount Due Francis Kennedy $1,010.00 Ida Stoerzimer $1,010.00 Marion Ernest $1,004.00 Elizabeth Lorenz $ 525.00 William Jameson $1,050.00 Anna Grissimer $ 606.95 Earl Frady $ 866.00 TOTAL $6,071.95 (b) The Plaintiff is due 51 weeks of salary at $400.00 per week from April 1999 through April 6, 2000, totaling $20,400.00. (c) The Plaintiff is due two weeks vacation pay at $400.00 week, for a total of $800.00. (d) The Plaintiffis owed $264.88 relating to a sale previously made to Mr. Paul Weaver on March 11, 1999, on which the Plalntiffwas paid a commission. On February 7, 2000, the Defendant withheld $264.88 from other monies due the Plaintiffbased on a claimed credit relating to the Weaver commission. Such action was taken without the Plaintiff's permission and without legal right to do so. (e) The total amount due the Plaintiffby the Defendant, as outlined above, is $27,536.83. COUNT I - BREACH OF CONTRACT 13. Paragraphs 1-12 are hereby incorporated by reference as fully as if set forth herein. 14. By reason of the aforesaid, the Defendant is in breach of its contract of employment with the Plaintiff by reason of failing to pay the sums outlined above, which total $27,536.83. WHEREFORE, the Plaintiff, Michael Schrim, demands judgment against the Defendant, Riverside Hearing Services, Inc., for the sum of $27,536.83, along with interest at the legal rate thereon. COUNT H - BREACH OF PENNSYLVANIA WAGE COLLECTION LAW 15. Paragraphs 1-15 are hereby incorporated by reference as fully as if set forth herein. 16. By reason of the aforesaid, the Plaintiff is owed the sum of $27,536.83 by Defendant, all as outlined in Paragraph 12 above. 17. Pursuant to the provisions of the Pennsylvania Wage Payment and Collection Law 43 P.S. § 260.1, et seq., the Plaintiff`is entitled to liquidated damages of 25% of the amount due, or $6,884.20. 18. By reason of the aforesaid provisions of the Pennsylvania Wage Payment and Collection Law, the Plaintiffis entitled to a recovery of his reasonable attorney's fees incurred in connection with collecting the monies due to him by his former employer (43 P.S. sec.260.9a(f)). WHEREFORE, the Plaintiff', Michael Schrim, demands judgmem against the Defendant, Riverside Hearing Services, Inc., for the sum of $27,536.83, along with liquidated damages of 25% of that amount, or $6,884.20, along with judgmem for the Plaintiff's reasonable attorneys' fees. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. 52030.1 J. ~a~ ~o~g}er, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D. #31720 Attorneys for Plaintiff, Michael Schrim VERIFICATION I, MICHAEL SCHRIM, hereby acknowledge that I am the Plaintiff in this action, that I have read the foregoing document, and that the facts stated therein are true and correct to the best of my knowledge, information, and belief I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: O~-OX col MICHAEL SCHRIM SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-01053 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SCHRIM MICHAEL VS RIVERSIDE HEARING SERVICES INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: RIVERSIDE HEARING SERVICES INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 9th , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dauphin County 18.00 9.00 10.00 29.25 .00 66.25 03/09/2001 R: Thomas Kline Sheriff of Cumberland County GOLDBERG KATZMAN & SHIPMAN Sworn and subscribed to before me this /q~ day of ~ A.D. ~Prothonotary Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Ralph G. McAllister Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW: March 7, 2001 NOTICE & COMPLAINT IN CIVIL ACTION RIVERSIDE HEARING SERVICES INC to SARA AVILA, SECRETARY of the original NOTICE & COMPLAINT IN CIVIL ACTION to him/her the contents thereof at 5405 JONESTOWN ROAD SUITE 109 HARRISBURG, PA : SCHRIM MICHAEL vs : RIVERSIDE HEARING SERVICES INC Sheriff's Return No. 0630-T - - -2001 OTHER COUNTY NO. 01-1053 at 9:25AM served the within upon by personally handing 1 true attested copy(ies) and making known 17112-0000 Sworn and subscribed to PROTHONOTARY So Answers, Sheriff's Costs: $29.25 PD 03/05/2001 RCPT NO 147198 TORO · In The C0hffofComm~on Pleas of Cumberland C°u-~ty, Pennsylvania Michael Schrim Riverside Hearin9 Services, Inc. No. 01-1053 NOW, 2/23/0i hereby deputize the Sheriff of , 20 O 0, I, SHERIFF OF CLTMBERLAND COIJ2WTY, PA, do Dauphin Coullty to execute this Writ, this deputation being made at the request and risk of the Plaintiff. S'neriff of Cumberland Count-y, PA NOW, within Affidavit of Service ,20. ,at o'clock served the ~y handing to and made lmown to copy of the ohg-inal the contents thereof. Sworn and sUbscr/bed before n~e this ~ day of ; 20 Sheriff of COSTS SERVICE MILEAGE .AFFIDAVIT Connty, PA lflCl~ Sc~-~, PIAINTIFF BELTONE ~ARING Ali) CEIl'rs. RS, DE~I~'DANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1053 CIVIL 19 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: J. Jay Cooper , counsel for the plaintiff~i~lf~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 $ ~ s. ooo. oo The counterclaim of the defendant in the action is lq/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Guy H. Brooks, EsquJ. re; Richard Rupp, Esqu/.re; and Richael Trav/_s, EsquJ. re WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, J. Jay Cooper, Esquire goldberg, Katzman & Shipman, P.C. ORDER OF COURT 320 Markst Street, Sl:ra~berry Square ~ P.O. Box 1268, Harrisburg, PA 17108-1268 AND NOW, ~//~_~ . ,~l-/~c~:~,in consideration of the foregoing petition, ./~~~__/ Eso., ~ ~-~ ~--~d~ aEcS~n~ dss pr~~'~/ ~~/~ ,Esq-,amappo,ntedar;,tr:torsmtheabovecap~ti~nedact,on(or By the Court, ~ p.j. In The Court of Common Pleas of C,-.herland County, Pennsylvania O I ,-- 16.C_ We do solemnly swear (or affirm) that we will support, obey and defend the Co~stitut±on of the United States and the Co~tttu=&o~ of ~.~his~mmon- AWARD We. the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If dm.ages for delay are awarded, :hey shall be separately stated. ) applicable.) Date of Hearing: Date of Award: · Arbitrator, dissents. NOTICE OF ENlq{Y OF AWARD am~ard was entered upon :he docket and notice :hereof given o7 mail :o :he parties or their attorneys. Arbitrators' compensation to be ~/~-~,,~_~ Dep~y MICHAEL SCHRIM Plaintiff V. RIVERSIDE HEARING SERVICES, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1053 NOTICE OF APPEAL FROM AWARD OF BOARD OF ABRITRATORS TO THE PROTHONOTARY: Notice is given that Riverside Hearing Services, Inc., Defendant, appeals from the award of the board of arbitrators entered into this case on June 5, 2002. A jury trial is demanded. I hereby certify that the compensation of the arbitrators has been paid. RUPP AND MEIKLE Her[~ertlG.~upp, Jrt, Es~l~JJr~ - SuprL,~e-C'ourt ID No. 01597 355 North 21 st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Afforneys for Defendant CERTIFICATE OF SERVICe: I, Herbert G. Rupp, Jr., Esquire, do hereby certify that I am serving a true and correct copy of the foregoing Notice of Appeal upon the person named below by placing the same in the United States Mail, First Class, Postage Prepaid on the date stated below: Dated: July 3, 2002 J. Jay Cooper, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 ~er~e~ G. Rupp, Jrl,'Esquire Ao~ey I.D.# 01597 Rupp & Meikle, P.C. 355 North 21 st Street, Suite 205 Camp Hill, Pennsylvania 17011 (717) 761-3459 MICHAEL SCHRIM Plaintiff V. RIVERSIDE HEARING SERVICES, INC. Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : NO. 01-1053 NOTICE OF APPEAL FROM AWARD OF BOARD OF ABRITRATORS TO: J. Jay Cooper, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Michael Schrim, Plaintiff TAKE NOTICE that an Appeal has been filed by the Defendant in the above- captioned action on July 3, 2002. A copy of the Notice of Appeal is enclosed. CURT LONG, PROTHONOTARY Date: July 3, 2002 ~e~y. Prothonotary ~ MICHAEL SCHRIM Plaintiff Vo RIVERSIDE HEARING SERVICES, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1053 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COURT: KINDLY ENTER APPEARANCE OF HERBERT G. RUPP, JR., ESQUIRE, AND RUPP AND MEIKLE FOR THE ABOVE-NAMED DEFENDANT, RIVERSIDE HEARING SERVICES, INC., IN THE ABOVE-CAPTIONED MArl'ER. RUPP AND MEIKLE Date: July 3, 2002 Herb~d ~.~' ' ~-t~p,~Jr., E~quJ~' - Supre~tTe~Court ID No. 01597 355 North 21 st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorneys for Defendant G~ Ru~3p, Jr.,'Esc~re' Supreme Court ID No. 01597 355 North 21 st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorneys for Defendant CERTIFICATE OF SERVICE I, Herbert G. Rupp, Jr., Esquire, do hereby certi~ that I am serving a true and correct copy of the foregoing Praecipe upon the person named below by placing the same in the United States Mail, First Class, Postage Prepaid on the date stated below: J. Jay Cooper, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 · I~upp", Jr., ~squ~i;e ' D.# 01597 Rupp & Meikle, P.C. 355 North 21 st Street, Suite 205 Camp Hill, Pennsylvania 17011 (717) 761-3459 Dated: July 3, 2002 PRAEClPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( × ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ( ) Assumpsit ( ) Trespass MICHAEL SCHRIM, VS. (Plaintiff) ( ) Trespass (Motor Vehicle) ( ) (other) RIVERSIDE HEARING SERVICES, INC. (Defendant) VS. The trial list will be called on and Trials commence on Pretriais will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214-1.) No. 01-1053 Civil Law 19___ Indicate the attorney who will try case for the party who files this praecipe: J. Jay Cooper, Esquire, Attorney for Plaintiff Indicate trial counsel for other parties if known: Herbert G. Rupp, Jr., Esquire, RupP and Me~kle, Attorneys for Defen,dar~t 355 North 21st Street, Suite 205, Camp Hill, PA This case is ready for trial. Date: Signed: Print Name: Attorney for: J. Jay Cooper, Esquire Plaintiff #6 MICHAEL SCHRIM, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CIVIL ACTION - LAW : INC., : z Defendant. : NO. 01-1053 CIVIL PRETRIAL CONFERENCE ~; AND NOW, this 16th day of October, 2002, before. :~;::~g~ B. Bayley, Judge, present for the plaintiff was J. Jay Cooper, Esquire, and for the defendant, Richard C. Rupp, Esquire. Plaintiff claims he was employed by defendant from December 1998 until April 2000. He was discharged. He seeks commissions allegedly due of $6,071.95, vacation pay of $800.00, and unpaid salary of $20,400.00. Pursuant to the Wage Payment and Collection Law, he seeks liquidated damages of 25 percent of the amount due and reasonable attorney fees. Defendant disputes the claim. The parties waived a jury trial. A bench trial will be conducted in Courtroom No. 2, Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, November 21, 2002, at 8:45 a.m. J. Jay Cooper, Esquire For Plaintiff Richard C. Rupp, Esquire For Defendant prs MICHAEL SCHRIM, PLAINTIFF · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA RIVERSIDE HEARING SERVICES, INC., DEFENDANT · 01-1053 CIVIL TERM ORDER OF COURT day of November, 2002, upon agreement of AND NOW, this counsel, the non-jury trial scheduled for Thursday, November 21, 2002, IS CANCELLED. The non-jury trial is rescheduled for Monday, December 9, 2002, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Edgar B. Bayley, e, Pennsylvania· ~"J. Jay Cooper, Esquire For Plaintiff / Richard C. Rupp, Esquire For Defendant :sal _ ii-lcl-O MICHAEL SCHRIM, : Plaintiff : : V. : : RIVERSIDE HEARING SERVICES, INC,: Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAAID COUNTY, PENNSYLVANIA 01-1053 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of December, 2002, this matter is continued to be completed commencing Monday, December 23, 2002, at 11:00 a.m. J. Jay Cooper, Esquire For the Plaintiff ~Richard Rupp, Esquire For the Defendant it By the Co~ rley, J. MICHAEL SCHRIM, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RIVERSIDE HEARING SERVICES, INC., DEFENDANT 01-1053 CIVIL TERM IN RE: WAGE CLAIM VERDICT AND NOW, this /~-'~---day of January, 2003, plaintiff is awarded $9,826.28 from defendant, with prejudgment interest of six percent per annum from April 10, 2000, on $3,861.02 of that award. J. Jay Cooper, Esquire For Plaintiff Richard C. Rupp, Esquire For Defendant :sal Edgar B. Bayley, J.-~ MICHAEL SCHRIM, PLAINTIFF RIVERSIDE HEARING SERVICES, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · 01-1053 CIVIL TERM IN RE: WAGE CLAIM OPINION AND VERDICT Bayley, J., January 2, 2003:-- Plaintiff, Michael Schrim, was employed for defendant, Riverside Hearing Services, Inc., from January, 1999, until April, 2000? Plaintiff, who was trained by the owner of defendant, William Kovach, worked as a hearing aid consultant who tested, sold, fitted and provided follow-up care for persons who purchased hearing aids. Plaintiffs employment was terminated by written notice from defendant dated April 10, 2000. Plaintiff instituted this suit seeking (1) unpaid salary and vacation pay, (2) commissions due on his sales of hearing aids, (3) liquidated damages and attorney fees under the Wage Payment and Collection Law? and (4) credit for part of a commission retained by defendant. The case was bench tried on December 9 and 23, 2002· Plaintiff maintains that when he undertook employment that defendant, by ' Defendant operates as Beltone Hearing Aid Centers· 243 P.S. § 260.1 et seq. 01-1053 CIVIL TERM William Kovach, orally agreed to pay him a $400 a week salary plus full commissions on sales. Defendant, by William Kovach, maintains that he offered plaintiff two ways of being paid, (1) full commission on sales? or (2) a base salary of $400 per week plus a reduced commission of 10% on sales. One hearing aid consultant who worked for defendant received a base salary plus reduced commissions. All other consultants were paid on full commissions. Kovach testified that plaintiff chose to be paid on full commissions. After some delay by plaintiff he signed a written employment contract on November 11, 1999, providing for wages in the form of full commissions. For all of 1999, plaintiff received wages based on full commissions totaling $34,900. He was terminated on April 10, 2000.4 In 2000, until he was terminated, he received wages based on full commissions of approximately $15,000. In Ingrassia Construction Company, Inc. v. Walsh, 337 Pa. Super. 58 (1984), the Superior Court of Pennsylvania stated that, "In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter." After reviewing all of the evidence and weighing the credibility of all of the witnesses, we find that notwithstanding that plaintiff may have hoped and believed that defendant would pay him a salary of $400 per week plus commissions, there was no such meeting of the Commission rates are set on a price list prepared by defendant and are generally 22% of the minimum net sales price net of options. The employment contract was terminable "by either party immediately." -2- 01-1053 CIVIL TERM minds in this regard, or did defendant make an outward and objective manifestation of such assent. The only contact between the parties was for wages based on full commissions as is provided for in plaintiffs written employment contract? Plaintiff is not entitled to his claim for wages at $400 a week totaling $20,400. He is not entitled to his claim for $800 for two weeks vacation pay that is not provided for in the employment contract? In his complaint plaintiff claims commissions due on his sales to seven customers totaling $6,071.95. In conformity with the proofs he offered at trial, the total claim is $5,970. DATE September 2, 1999 December 3, 1999 February 12, 2000 February 25, 2000 March 20, 2000 CUSTOMERS SALE COMMISSION Weaver $4,990 $1,010 Stoerzimer $6,190 $1,010 Frady $5,690 $866 Grissimer $3,000 $505 Ernest $6,190 $1,004 s The employment contract contained a notation that, "Addendum not considered part of contract." Defendant testified that this addendum referred to its testing, fitting and post- fitting protocol. Plaintiff testified that it referred to an addendum that he signed, but was not signed by defendant, providing that he would be paid $400 per week plus full commissions. 6 Plaintiff was required to work long hours for 50 weeks a year. He received two weeks vacation without pay. Defendant's dissatisfaction with plaintiff's attendance to his employment resulted in the termination. -3- 01-1053 CIVIL TERM March 29, 2000 Jameson $5,190 $1,050 March 27, 2000 Lorenz $2,595 $525 TOTAL $5,970 William Kovach testified that plaintiff is not entitled to any commissions. argues in his brief: He Plaintiff was not present to make final delivery of the hearing aid devices to customers and as such, was not owed any commissions at time of firing. In other words, the sale, the fitting and the collection of payment from the customer had not been completed, and as such, the final commissions were not owed to plaintiff at time of firing. Defendant cites its testing, tiffing, and post-tiffing protocol that provides, inter alia: COMMISSION THIS POSITION IS A COMMISSION SALES POSITION. COMMISSION IS STRUCTURED AS A FIXED AMOUNT ON THE SALE, FITTING, AND AFTER-FITTING SERVICE OF HEARING AIDS. SEE CURRENT PRICE LIST FOR CURRENT COMMISSION STRUCTURE. COMMISSION IS PAID BY AN OUTSIDE SERVICE EVERY TWO WEEKS BASED ON THE FITTINGS TO DATE. THE PAYMENT OF COMMISSION MAY BE WITHHELD IF THE FITTING IS UNSUCCESSFUL OR THE SATISFACTION OF THE CLIENT IS IN DOUBT. PARTIAL (1/3) COMMISSION MAY ALSO BE SURRENDERED WHEN ROUTINE FOLLOW-UP PROTOCOL IS NOT DONE AND LOGGED. (Emphasis added.) In its termination letter to plaintiff, defendant stated: You will be paid for your current sales and fitting according to your contract and our company policy. You will have to wait until these contracts are out of recission [sic]. (Emphasis added.) The parties' employment contract provides in pertinent part: 01-1053 CIVIL TERM 4. COMPANY AGREED TO PAY CONSULTANT A COMMISSION BASED ON SALES MADE BY CONSULTANT DURING THE TERM OF THIS AGREEMENT. THE RATE OF COMMISSION TO BE DETERMINED IN ADVANCE BY THE COMPANY AND WILL APPEAR ON THE CURRENT SALES PRICE SHEET. COMMISSIONS SHALL BE PAID BI-WEEKLY BASED ON FITTING AND CONSEQUENT MONIES RECEIVED BY THE COMPANY ON THE CONSULTANTS SALES AND ACCOUNTS. CONSULTANT IS PERSONALLY RESPONSIBLE FOR COLLECTION OF ACCOUNTS AND SHORT-SALES AND NO PAYS WILL BE DEDUCTED FROM EARNED COMMISSIONS, SO THIS IS TO BE AVOIDED BY CONSULTANT. THIS INCLUDES 10% MOLDING FEES ON NEW ORDERS NOT CANCELLED WITHIN THREE BUSINESS DAYS AND THIRTY DAY CANCELS AFTER FITTING. COMMISSIONS WILL NOT BE PAID ON ANY ACCOUNT UNLESS PROPER AND LEGAL FORMS AND CONTRACTS AND HEARING TEST PROCEDURES UNDER PA ACT 262 ARE PROPERLY COMPLETED AND EXECUTED. (Emphasis added.) 12. UPON TERMINATION OF THIS AGREEMENT COMPANY AGREES TO PAY CONSULTANT ON A REGULAR BASIS ALL COMMISSIONS ON ALL ACCOUNTS SOLD AND MONIES RECEIVED ON COMPANY'S BEHALF BY CONSULTANT. COMPANY MAY WITHOLD [SIC] COMMISSIONS ON SALES OF QUESTIONABLE CUSTOMER SATISFACTION, INCLUDING DURING PERIODS OF CUSTOMER REClSSION [SIC] UNDER ACT 262, OR SALES THAT ARE STILL IN RECISSION [SIC]. UPON RESOLUTION OF SUCH SALES AND REClSSlONS [SIC] CONSULTANT SHALL BE PAID ON THE BASIS OF 1/3 FOR THE SALE, 1/3 FOR THE FITTING, AND 1/3 FOR THE FOLLOW-UP OR ANY SALES MADE ON THE COMPANIES BEHALF, LESS ANY UNPAID ACCOUNTS AND SHORT-SALES. (Emphasis added.) A determination of whether plaintiff, whose employment was terminated by defendant, is owed commissions is based on his employment contract, not defendant's protocol/company policy that he admits was not incorporated into the employment contract. The operative part of the employment contract that defendant has failed to apply to plaintiff is that on termination, "upon resolution of such sales and recissions -5- 01-1053 CIVIL TERM [sic] consultant shall be paid on the basis of 1/3 for the sale, 1/3 for the fitting, and 1/3 for the follow-up for any sales made on the companies behalf, less any unpaid accounts and short-sales." It is on this basis that we will review plaintiff's claims for commissions seriatim. ~EAVER Defendant claims that plaintiff is not entitled to any commission on the September 2, 1999 sale because when plaintiff was terminated on April 10, 2000, the customer still owed $400 on the $4,990 sale. The customer still owes $326 which defendant testified the company is not likely to receive because the customer is unable to pay. Pursuant to plaintiff's employment contract, he is entitled to a full commission on $4,664 ($4,990 minus $326), or $932.80. STOERZlMER Defendant claims that plaintiff is not entitled to any commission on the December 3, 1999 sale because when plaintiff was terminated the customer still owed $1,000 on the $6,190 sale. The $1,000 was paid on September 17, 2000. Pursuant to plaintiff's employment contract, he is entitled to a full commission of $1,010. FRADY Defendant claims that plaintiff is not entitled to any commission on the February 12, 2000 sale because after plaintiff was terminated Frady changed the hearing aid, and defendant received $432 less than it would have on the initial sale of $5,690. The customer's initial dissatisfaction was resolved and the sale was completed. Plaintiff -6- 01-1053 CIVIL TERM was not involved in the refitting and follow-up care. Pursuant to plaintiff's employment contract, he is entitled to one-third of the commission of $866, or $288.67. GRISSlMER Defendant claims that plaintiff is not entitled to any commission on the February 25, 2000 sale because the paperwork he submitted was incorrect on the $3,000 sale. Notwithstanding, the sale was completed and the customer paid in full. Pursuant to the plaintiff's employment contract, he is entitled to the full commission of $505. ERNEST Defendant claims that plaintiff is not entitled to any commission on the March 20, 2000 sale of $6,190 because (1) the initial testing before the sale to determine the need for the hearing aid was done by another employee, (2) he did the fitting on April 14, 2000, and (3) he did the follow-up care. The employment contract makes no provision for a reduction in commission if prior to the sale by plaintiff another employee conducted the testing on the customer. 7 Pursuant to the plaintiff's employment contract, he is entitled to one-third of the commission of $1,004, or $334.67. JAMESON Defendant claims that plaintiff is not entitled to any commission on the March 29, 2000 sale of $5,190 because he did not do the follow-up care, and the customer 7 Plaintiff testified that this happened occasionally. Defendant did not rebut that testimony. -7- 01-1053 CIVIL TERM exchanged hearing aids on July 18, 2000.8 The dissatisfaction of the customer was resolved. Pursuant to the plaintiff's employment contract, he is entitled to one-third of the commission of $1,050, or $360. LORENZ Defendant claims that plaintiff is not entitled to any commission on the March 27, 2000 sale because (1) he did not make the sale (William Kovach claims he sold the hearing aid on March 27, 2000), (2) he did fit it (William Kovach fit it on May 3, 2000), and (3) he did not do the follow-up care. Defendant's own internal documents show that plaintiff sold the hearing aid as he claims. Pursuant to plaintiff's employment contract, he is entitled to one-third of the commission of $525, or $175. In his complaint, plaintiff averred that he is owed $264.88 on a commission he earned on a sale on March 11, 1999, that defendant, on February 7, 2000, withheld from another commission due him. Defendant filed an answer to the complaint averring that the original account was not paid in full, and it retained the $246.88 as credit against other money owed plaintiff "by agreement of the parties." At trial, plaintiff testified that there was no such agreement. Defendant did not rebut this testimony. Plaintiff is entitled to recover the $264.88. The Wage Payment and Collection Law at 43 P.S. Section 260.2(a), defines "Wages," to include "[a]ll earnings as an employee, regardless of whether determined on time, task, piece, commission or other method of calculation." (Emphasis added.) 8 The second hearing aid cost $600 more than the first. -8- 01-1053 CIVIL TERM Section 260.10 provides: Where wages remain unpaid for thirty days beyond the regularly scheduled payday, or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employe of a proper claim or for sixty days beyond the date of the agreement, award or other act making wages payable, or where sho~rtages in the wage payment made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter, and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater. (Emphasis added.) The total amount of plaintiff's recovery for unpaid wages in the form of commissions is $3,861.02. This lawsuit was filed on February 22, 2001. Sixty days beyond that date is April 22, 2001. The wages have remained unpaid. Based on defendant's complete disregard for plaintiff's employment contract, that provided that on termination and "upon resolution of [plaintiff's] sales and recissions [sic] consultant shall be paid on the basis of 1/3 for the sale, 1/3 for the fitting, and 1/3 for any follow-up on any sales made on the companies behalf less any unpaid accounts and short-sales," defendant's claim that plaintiff is not entitled to any wages after the termination of his employment is not in good faith. Defendant is not entitled to any right of set-off or counterclaim against the wages due plaintiff. Therefore, plaintiff is entitled to liquidated damages of twenty-five percent of the total amount of wages due of $3,861.02, or $965.26. Section 260.9(0 of the Wage Payment and Collection Law provides: -9- 01-1053 CIVIL TERM The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys' fees of any nature to be paid by the defendant. (Emphasis added.) The bulk of plaintiffs claim was for unpaid wages of $20,400 based on his assertion that he was owed a $400 per week salary for the time he worked for defendant. We rejected this claim which constituted a large part of the testimony and evidence. The claim for unpaid commissions and the return of the credit which was wrongfully withheld by defendant, for which we have granted relief, was a straightforward claim that was easy to litigate. However, plaintiffs attorney had to meet with his client, research the claim, make a demand, file a complaint, obtain discovery, communicate with opposing counsel, prepare and litigate the claim before a board of arbitrators,9 prepare a pre-trial memorandum, attend a pre-trial conference, file a trial brief, prepare and litigate the case in this court, and otherwise manage the case. Plaintiff has been billed $18,483.43 for legal fees through November 27, 2000, which does not include the trial. If the claim had been limited to the collection of the commissions and the credit, we find, conservatively, that a reasonable attorney fee would be $5,000, which plaintiff is entitled to recover. In conclusion, we will award plaintiff (1) $3,861.02 for unpaid wages, (2) liquidated damages of $965.26, and (3) an attorney fee of $5,000, for a total of Defendant filed this appeal from an award of the board of arbitrators. -10- 01-1053 CIVIL TERM $9,826.28. Prejudgment interest is due on the $3,861.02 in unpaid wages from April 10, 2000? VERDICT AND NOW, this "~-~- day of January, 2003, plaintiff is awarded $9,826.28 from defendant, with prejudgment interest of six percent per annum from April 10, 2000, on $3,861.02 of that award. J. Jay Cooper, Esquire For Plaintiff Richard C. Rupp, Esquire For Defendant :saJ ~o Fernandez v. Levin, 519 Pa. 375 (1988). -11- J. Jay Cooper, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D.//31720 Attorneys for Plaintiff MICHAEL SCHRIM, PLAINTIFF Vo RIVERSIDE HEARING SERVICES, INC., · DEFENDANT ' : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-1053 : CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please discontinue the above-captioned action with prejudice and mark the verdict entered in this case by Judge Bayley as satisfied. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. 91325.2 J. Ja~o~pel~Esqu~re 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney I.D. #31720 Attorneys for Plaintiff, Michael Schrim