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Home My WebLink About06-3679 . . . COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of Cumberland NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No. ex.. - 3' "19 Pt~~~tT2Ut NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT Brecht. Benjamin B. ADDRESS OF APPELLANT 2255 Peachtree Road, Unit 427 MAG. OIST. NO. 09-1-02 NAME OF MDJ Roberl V. Manlove CITY Atlanta STATE GA ZIP CODE 30309 DATE OF JUDGMENT 6/01/06 IN THE CASE OF (Plaintiff) Quality Builders Warranty Corp. " (Defendant)' Brecht, Benjamin PELLANT OR ATTiEY OR AGES::/-- CV -0000629-05 1001(6) in action before a Magisterial District Judge, A COMPLAINT MUST BE! FILED within twenty DOCKET No This block will be signed ONLY when this notation is required under Pa. RC.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial Dislrict Judge, will operate as a SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appellant was DEFENDANT (see Pa.R.CP.D.J. No. 1001 (7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon QUALITY BUILDERS WARRANTY CORP. appellee(s), to file a complaint in this appeal (Common Pleas No. Df. -.1'- '79 Name of appel/ee(s) ~ ~ilhin twenty (20) days after ent of non pros. RULE: To QUALITY BUILDERS WARRANTY CORP. , appellee(s} Name of appeJlee(s) (1) You are notitied that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days afler the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: ~:lllO6 Jt..c....cJ€.. :2?t :t6Ub ___ ~Oc(.P.~~I~ Signa re of P tho ota eputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL AOPC 312-05 ~ iq XJ ~ (\ t ~ ~ ........ ~ -v ~ ?- -.0 ~ " ()-J ~ ~ ----.., .'<J ~ }- ::--' C) ~~ ~~~ C,_ :r.: ~,~,~ i"i1 ~..,~ r,) co ~i?': ;; ., -::, C.::,, ?D ~- :< en , -. . COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CtIIIBBRLAlIID 09-1-02 NOTICE OF JUDGMENTITRANSCRIPT CIVil CASE PLAINTiff: :' , , '''NAME and ADDRESS fQUAI.:I'l'Y BtJ:IIiI)BRS' 1dlmAJr1'Y CORP. 'I 325 B 210). S.T WO~~SBURG, PA17043 L Mag. Dist. No. MDJ Name: Han. 1l0BD.TV. .IIAJIIL()V:E Add'.., 1901 STATE ST c.lJn>B:ILL, PA BDJAIUB B.. BIlBCBT 2255 PDCJITIlBB JlD tnl:IT427 ATLAlITA, GA 30309 , ',DEFENDANT: .~... ,:,:.:Bn~, BBlfJAII:IB B , 2255 PUcJrna lID trinT 427 . ~TLAJI'l'A,QA 30309 ):,'" ,V,S. , " . NAME and'ADDRESS Docket No,: CV-0000629-05 Date Filed: 12/21/05 . ~ -- THIS IS TO NOTIFY YOU THAT:. . ,....."';';";".'jffd'gmene~~.c- ,~::,;:;.--;,:';;'.." ~::.:-,:.~,..~;"","""'4,'''C ~B."A.~~,:;,"DI"nIaI-. JT.I1Yp..., - ;~,''';''; --- - '''''-'' (iJ Judgment was entered for: (Name) QJT:U.T'I'Y 1l1TTT.nll'1UI IB1P1P&1I'I'V l"n1PP (iJ Judgment was entered against: (Name) BIl'RC!R'\', RtnrJAIITlII B in the amount of $ A 110 !;i0 on: (Date of Judgment) & /01/0& o Defendants are jointly and severally liable. o Damaps will be assessed on: (Date & Time) Amount of Judgment $ 8>000.00 JudgmenrCosts $ 110 .50 . Int.eres! on Judgment $ .00 Attomey Fees $ .00 Total $ 8,110;50 . Post Judgment Credits $ Post Judgment Costs $ -c- ....----...------ ------------ Certified Judgment Total $ This case dismissed without prejudice. O Amount of Judgment .Subject to , Attachment/42 Pa.C.S. 9 8127 $ o Portion of Judgment for physical . damages arising out of residential lease $ ANY PARTY HAS THE Rltit-lT TO APPEAL WITHIN 30 DA YSAFJ"ER Tt-IE ENTRY OF JUOOMENT 6Y FILlNtiA NonCE ':':,:. :<;J.' "":':;'~, '," ':'~"::", '~" '~'" ': :,: ,::', "" ',/",,;";,: ,,,' ';:, : " ::"", ;::I.-~'-"-"~:,: C,""',-: "C," _"';'- ;;~_ ',~:i :'~' '0-:", :,-__ ::": ::",:':, :~::":. ":':~;,' ':<:':': "","::' ',:,:l";-"_~",,:_,,,,,:,,:,: '_' -OFAPPEAL\viTH Tt-IE PRoit-lONOTAfWicLERKOFTHE'COURT 01" COMMO/TPLEA"i;, C1VirDIVlsioN.yoif' .. .' . MUST INp~UDE A COPY OF Tt-IIS NOTICE OF JUDtiMENTfTRANSCRIPT FORM WITt-I YOUR NOTICE OF APPEAL. EXCEPT A.S OTHERWISE PROVIDED IN Tt-IE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDtiES. IFTt-IE JUOOEMENTt-IOLDER ELECTS TO ENTER TliE JUDtiMENT lliI THE ceURTO~,COMMON PLEAS, ALL FURTliER PROCESS. MUST COME FROM TliE COURT OF COMMON PLEAS AND NO FURTliER PROCE,SS MAY ElE ISSUED flY T1iE MAGISTERIAL DISTRICT JUDGE. UNLESS Tt-IE JUDtiMENT IS ENTERED II'ITt-IE COURT OF COMMON plElIS, ANYONE.INTERESTED IN Tt-IE JUptiMENT MAY FILE A REQUEST FOR ENTRY OFSATISFAcnON WITt-I THE MAGISTERIAL DISTRICT JUPtiE IF TliE JUDtiMENT DEBTOR PAYS IN FULl, SETTLES. OR OTt-IERWISE COMPLIES WITt-ITt-IEJUDtiMENT. th tthisisatruean 01: Date''-o ,~\ ,,'I,J:X:'P;""i. ' "t,\,''''\'''' '," ""Ai~:":'":,:"",.'-:,,, , ,",:,> , M;l.9istlltiaH)istri6t Jt1dge '~\-" ,,"\:?:<:~:;~"i> t~""'I/"'"" ' ," , , eedingsBojla\n~~-;~e judgment. "~,,,',,' "t:~t,.>,:,",": l. ,'_, .:' ",,': ~ Mavisterial,Qjslrict Jod.Qe -;',,:_..,',.\. ,1:>'-"" . My commission expires first Monday of January, 2012 l. AOPC 315-05 DATE PR:IBTBD: 6/01/06 9:13:11 All ~,,~ '>,'", ','" ''', ~.i 'j '~eAL " t".. ~:l-n~,<. . " (--~ '" c;-, ,-:~ CJ"'" () -n ~ 01'1 r; c_ f,"- r- , cr, ::'i~^. '.,.' o r "'J :-:.-..;. PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of selVice MUST BE FILED WITHIN TEN (10) DA YS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumbertand ; S5 AFFIDAVIT: I hereby (swear) (affinn) that I selVed IZI a copy of the Notice of Appeal, Common Pleas No.06-3679 Civil Term, upon the Magislerial Districl Judge designated therein on (date of service) June 29, 2006, o by personal service ~ by (certified) (registered) mail. sender's receipt attached hereto. and upon the appellee. (name) QUALITY BUILDERS WARRANTY CORP" on June 29, 2006 Dby personal service~ by (certified) (regislered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS 6th DAY OF Julv, 2006 Wfaw fJw/~~ ~~/J1ttrJ Signature of oft/cia before m aft/davit was made COMMONWEALfH OF PENNSYLVANIA Notarial Seal Harva Owings Baughman, Notary Public City of Harrisburg, Dauphin County My Commission Expires July 12. 2008 Member, Pennsy1vania Association of Notaries ~l ;:::9-. Signa re of affiant Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 My commission expires on Julv 12. 2008 AOPC 312A, 05 . USPS - Track & Confirm Page 1 of 1 u~llWE.. HpnH~ I Help Track & Confirm Search Results Label/Receipt Number: 7003 1680 0006 5640 6785 Status: Delivered Your item was delivered at 10:42 am on June 29, 2006 in LEMOYNE. PA 17043. Enter Label/Receipt Number. ~1l8 Track & Confirm by email Get current event information or updates for your item sent to you or others by email.Gp > .. POSTAL INSPECTORS Preserving the Trust site map contact us government services jobs Copyright@1999-2004USPS. All Rlghts R(J$0r\'(hd~ Terrn:~ P'J1ic',' . CoqlI8Ie It8ma 1, 2, and 3. ~ oomplete Item 4 W FlIWIclIIcI DeIIveIy 18 deIInld. . PrInt your neme and addr8Ia on the reverse eo that _ C8I1 nolum the card to you. . A!Iaf#I thI8 card to the b8ck 01 the mellp1ece, or on the frllnt W Ipece permIta. 1. ArtIcII ""(ill! 1 J to: Qohn ~t1i1\1 'is~W'(~ Q uol1+f&..u IWs. vJClmtr~ Corp. 3dS N. )1'4 &. 'WlJvm~SWC5' PA 110'-13 3._~ ~ MIl C E!lcpo.- MIl ~.d ~RoooiptIarMt..J.... C _ MIl C c.o.D. 4. 11wI>u..d DoI'-y1 (&/Iw Fee) C ~ \;'":n-. ':" "/rtf"l'Ji?i:J03 ,lJ,!Mt ODDb &640 6785 ~~e.l1~~tM.)otWI-I ~--- 1~ DlUtOm http://trkcnfrm1.smi.usps.com/PTSlntemetWeb/lnterLabelInquiry.do 7/5/2006 . USPS - Track & Confirm Page 1 of 1 ~~~~ H~)fTI9 I Help ,.......'w.....www w,,'w. :~1i:ITG2~;"!;';;i:!;:;;;;0~0'ifmS0:Lnc~;~'::':c~::'; '~_w_"__"'_;,;; ., , ~" ,,"~'""'~,~:.:...;,,:;;;:;;;:~~"" ,,;:L~:'~:':,:::,:~:,::~ w.,,,, .n ",.."" "",'., "u, :',~:":,, TGlCJL& Co.nfirJI! Track & Confirm Search Results label/Receipt Number: 7003 1680 0006 5640 6778 Status: Delivered Tr4H1k :& Enter Label/Receipt Number. Your item was delivered at 9:14 am on June 29, 2006 in CAMP Hill, PA 17011. Notir<<:atioll Track & Confirm byemail Get current event information or updates for your item sent to you or others by emall. Gu c' .. POSTAL INSPECTORS Preserving the Trust site map contact us government services ,jobs National 8. Premier Accounts Copyright C01999~2004 USPS, All Rights Res?rvcd. Terms of Use Privacy Polley -'" . 0II,1JlI* 1t8m11, 2. 8lida. AIIo.:Cliilplooll. '-.n 41f molilClild 0elIvery Ie dIeInld. . I'llnt your name and 8ddI!IIa on ~ ~ 10 IhlII W!l C8n IllIUm ~ cenl to you. . Ml!Ich!hle cenl to tI1e blIck oUlle mallp1-. . on the front If IlpIIC8 permits. 1. _Add. 110: 10ilert V. JAaP7(rre .MO~, Dt5f, rJO: [IJ-f-02- I fOI s1r1k j-r~ COA1-1p f-Jvit (!f) /70fl-()fXjtJ O. IIc111vory __tlan II1lm 17 [J """ ~ YES. _ cIIIvory _ below: [J No 3. -1W>o Er"~ MIl );I...... Mol Q1logIoh..d "l:lHio.um -.- fer M...J_...... [J _ MIl [J C.O.D. .. _"-dDoll..yl/l!JltnlFeeJ [J """ 70Q3 1680 0006 5640 6778 ---. 1 r r t:lHII-llMO http://trkcnfrm1.smi.usps.comlPTSInternetWeb/lnter LabelInquiry .do 7/5/2006 QUALITY BUILDERS WARRANTY CORP. Plaintiff/Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 06.3679 Civil Term BENJAMIN B. BRECHT, Defendant/Appellant CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Proof of Service of Notice of Appeal and Rule to File Complaint, via first-class, postage prepaid U.S. Postal Service, upon the following: The Honorable Robert V. Manlove District Magistrate No. 09-1-02 1901 State Street Camp Hill, PA 17011 John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: Julv 6. 2006 By: ~JA;tla/~fJ~l;man Harva OwingsBaughman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant/Appellee, Benjamin B. Brecht Quality Builders Warranty Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff DOCKET NO. 06-3679 v. CIVIL ACTION BENJAMIN B. BRECHT Defendant NOTICE YOU HA VE 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 judgement 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 TIllS 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 32 South Bedford St. Carlisle, P A 17013 (717) 249-3166 QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CNIL ACTION BENJAMIN B. BRECHT DOCKET NO. 06-3679 Defendant COMPLAINT AND NOW, this 6th day of July, 2006 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendant and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation (QBW) a Pennsylvania corporation engaged in the Ten Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. Defendant Benjamin B. Brecht (Brecht) is an adult individual residing at 2255 Peachtree Road NE, Unit 427, Atlanta, GA 30309. 3. QBW was desirous of hiring a National Account Executive for the state of Georgia and in October 2005 Brecht was referred as a candidate for employment by an agency. 4. On October 10, 2005 a telephone interview was conducted with Brecht and as a result of the information supplied by Brecht QBW's National Sales Director traveled to Atlanta, GA on October 14, 2005 and interviewed Brecht for the position. 5. Brecht submitted a resume reportedly outlining his past experience and current employment. 6. During the interview Brecht indicated that he was an employee of Brican had a base salary of $35,000.00 per year plus commission and earned $74,600.00 per year. 7. During the interview Brecht was requested by QBW to submit a list of employment references in order for QBW to perform their due diligence. 8. In response to QBW's request Brecht supplied three references via an email dated October 14, 2005. 9. One of the references supplied by Brecht was Jim Conlin who Brecht represented was his supervisor at his current employer, Brican Corporation. 10. In fact, Jim Conlin was the stepfather of Brecht and, although employed by Brican, was not the current supervisor of Brecht. 11. In connection with the due diligence process Brecht supplied letters to QBW on Brican Corporation letterhead reportedly issued by Jim Conlin, Brecht's stepfather, congratulating Brecht on his performance as a sales representative for Brican Corporation. A true and correct copy of said letters are attached hereto incorporated herein and marked as Exhibits 1 and 2. 12. In reference to Exhibit 1, an "Internal Memo" dated June 30, 2005 the individuals referred in the memo; Ron Meyers and Alex Johnson were never employees or representatives of Brican. 13. In reference to Exhibit 2, a letter dated January 31, 2005; Brecht did not even reside at 2255 Peachtree Road, Unit 47, and Atlanta, GA on January 31, 2005, which is the address contained in the letter. 14. Brecht did not reside at the Peachtree Road address until months after January 31, 2005. 15. As a result of the information supplied by Brecht and relied on by QBW Brecht was extended an offer of employment with QBW on October 26, 2005. Brecht's fIrst day of full time employment with QBW was to commence on November 14,2005. 16. Brecht accepted the offer of employment and indicated he would resign his position at Brican. 17. Brecht commenced employment as agreed on November 14, 2005 and in connection with his employment executed an agreement containing a restrictive covenant dated November 14,2005. A true and correct copy of the agreement is attached hereto incorporated herein and marked as Exhibit 3. 18. The agreement indicates that the employment relationship shall be interpreted under Pennsylvania Law and that any suit shall be instituted in Pennsylvania in a court of competent jurisdiction. The agreement further indicates that Brecht consents to the personal jurisdiction of the Pennsylvania courts. 19. After acceptance of employment by Brecht but prior to his start date, Brecht forwarded an email to QBW on November 11, 2005 indicating that he would need days off to attend weddings in the state of Florida, those dates being Friday December 2nd and Friday December 9th. A true and correct copy of said email is attached hereto incorporated herein and marked as Exhibit 4. 20. Shortly after commencing employment QBW had reason to believe that Brecht was not devoting his full time to QBW employment as agreed. 21. On Tuesday, December 13th QBW contacted Brican, Brecht's prior employer, who conftrmed that Brecht was still one of their sales representatives. 22. While employed by QBW Brecht continued to sell for Brican despite his representation that he resigned his position. 23. During Brecht's interview with QBW, Brecht indicated that his compensation at Brican consisted of a base salary plus commissions. 24. Brican indicated that Brecht was employed as an independent contractor since August 2005 and was not a salaried employee. 25. Brican further confirmed that Brecht's duties were to attend "seminars" in Florida to sell the Brican product. Typically these seminars would be on a weekend which would require attendance on Friday as well. 26. The email of November 11,2005 sent by Brecht, attached as Exhibit 4, requesting time off for a wedding was false in that Brecht was actually requesting time off to attend seminars on behalf of Brican on these dates. 27. Based on the above Brecht fraudulently induced QBW to hire him as a sales representative. 28. QBW terminated Brecht's employment on December 14, 2005. 29. Prior to his termination of employment with QBW on December 14, 2005, Brecht never informed Brican that he was a full time employee ofQBW. 30. In connection with the hiring process and employment of Brecht, QBW incurred expenses and fees as follows: 11130/05 Payroll Paid Paid Exoenses to Ben Dinner 11/18 (during initial training) Airfare 11/14 (to initial training) ToIls 11/20 (during initial training) Total 402.30 13 .44 549.78 4.25 567.47 Other Exoenses Daid for Ben Hotel (during initial training) Business Cards UPS (Supplies sent to Ben) Drug testing at hire Delta (flight for retraining 12/13, cancelled, credit in Ben's name) Hotel for retraining (12/13) Airtran flight to BWI for retraining (12/13) Airtran Flight to International builder show HBA (dinner meeting attended) Georgia Messenger Service Total 1,233.19 37.90 9.93 65.00 248.41 128.52 188.40 166.90 40.00 580.50 2.698.75 Sales Man82er's EXDenses incurred for Ben Sales Manager's salary (during Ben's training- 8 days) 2,452.08 Lunch and dinner (for Ben during initial training) 64.47 Atlanta Recruiting 470.72 Sales Manager's ride along (Airfare & Hotel, scheduled 12/18/05)427.46 (orig charge 635.29 less partial credit of 207.83) Total 3.414.73 Grand Total 7.083.25 31. Had Brecht been truthful QBW would not have hired him. 32. Based on Brecht's fraudulent misrepresentations and inducements QBW is entitled to recover all of its expenses and loss in connection with the hiring and employment of Brecht. 33. Brecht's conduct is willful and outrageous and as a result QBW is entitled to punitive damages. 34. In addition, Brecht violated his agreement with QBW including, among other things, diverting, diminishing and prejudicing the good will and business of QBW. 35. By virtue of the above Brecht breached his agreement and as a result of this breach and fraudulent inducement and lack of good faith intentions to engage in gainful employment with QBW Brecht is liable for the above stated damages in addition to unliquidated damages. Said amount being less than $35,000. Wherefore, Plaintiff, Quality Builders Warranty Corporation, demands judgement against Defendant, Benjamin B. Brecht for the special damages identified in the Complaint, unliquidated and punitive damages, said amount being less than $35,000. Respectfully Submitted, ~ Johri . Gill, Esq. orth Second Street Wormleysburg, PA 27043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation Oct 25 05 OS:46a p.2 , B R I ('.. N CORPORATION www.bricancoro.com - 405641-5107 Jim Conlin National Division Manager Internal Memo TO: Territory Managers FROM: Jim Conlin SUBJECT: Sales Records & Announcement DATE: June 30, 2005 The following sales reps have consistently remained at the top of their game since joining Briean and their accomplishments continue to demand the respect of their peers: 1) Ron Myers of Houston ranked NUMBER ONE in the nation for net sales volume for the last three months and is a contender for National Salesman of the Year. 2) Ben Brecht of Georgia has ranked NUMBER lWO in sales for the last two consecutive months and is being considered for Q4 advancement. 3) Alex Johnson of Florida was promoted to Regional Manager over one of the most profitable territories in the nation. All the best to these professionals. They exemplify the integrity, professionalism and dedication that make Sriean a great place to be. Keep up the good work! Regards, Jim Conlin National Division Mgr. ..-/ . - j:s)L iJ-1 r?:u T .:[ "{d ",~...~. r..~ O".r-," 2:-; IUUJ IV . t,/ '... 5300 Southbe~d Road J:rtftlnntl nlC '7~n'tA Oct 25 05 09; 46a . p. 1 " BRie N CORPORATION www.bricancoro.com - 405641-5107 Jim Conlin National Division Manager January 31,2005 Mr. Ben B. Brecht 2255 Peachtree Rd., Unit 427 Atlanta, GA 30309 Dear Ben: This is to congratulate you and fonnally announce that your production has set a new Brican record for the highest net sales volume in the first ninety days of employment. Your success as a sales representative has been very commendable and Brican rewards those who are trendsetters. As you know, Brican is an outstanding organization with tremendous advancement opportunity. I wish you the best and I am sure your success will continue as it has in the past. Sincerely, Jim Conlin National Division Mgr. OCT 2. & 2005 Cx/.../;;i II c2-- 5300 Southbend Road Edmond. OK 73034 AGREEMENT This Agreement is made on the 14th day of November, 2005 between QUALITY BUILDERS WARRANTY CORPORATION, "QBW", and BEN B. BRECHT, "EMPLOYEE" WHEREAS, QBW desires to employ EMPLOYEE as an at-will employee and whereas, EMPLOYEE desires to be employed by QBW as an at-will employee. WHEREAS, as prerequisite for employment with QBW, EMPLOYEE must execute this agreement containing a restrictive covenant. Now, TIIEREFORE, in consideration of the mutual promises set forth herein and intending to be legally bound hereby, it is agreed between QBW and EMPLOYEE as follows: EMPWYEE agrees that at no time during the term of employment, and for a period of two (2) years immediately f~wing the termination of employment, will helshe, for himselflherself or on behalf of any person other than QBW, ~ employed by or in any way become affiliated with any other warranty program or engage in the recruitment of builders for and in connection with any competitor of QBW in the states where QBW dOes business. EMPLOYEE also agrees that any and all records, computer or other, including but not limited to the names and addresses of builders registered in the Program and any other records relating in any manner whatsoever to the business and operation of QBW, applicant builders or prospective applicants, prospect cards, whether compiled or prepared by EMPLOYEE, or ~erwise coming into his/her possession, including copies, or computer databases, shall be the exclusive property of QBW and will be returned to QBW immediately upon termination of employment. EMPLOYEE agrees not to make copies of any information provided to himlher or copy any information on or from computer software. EMPLOYEE shall not at any time directly or indirectly, use or disclose to any person, except to QBW and its duly authorized v6fflcers and employees entitled thereto, the list of prospective, registered or applicant builders, their credit classifications, records, statistics, or other information with respect to registered or applicant builders, or information learned concerning the QBW program including rates, revenues, insurance relationships, policy limits, etc., acquired b:y..EMPLOYEE or anyone else in the course of the performance of his/her duties in any capacity whatsoever since <1his information is confidential and not available to the public. EMPLOYEE shall not in any manner, directly or indirectly, aid or be party to any acts, the effect of which would divert, diminish or prejudice the good will or business of QBW, or its relationships with. its employees, past arid present or future as well as its business and regulatory . relaJienships. No compensation due will be paid until all materi. "als, including computer hardware or software, are ~ed in good and working condition and in the same condition received, normal wear and tear excepted. Additionally no commissions will be paid after the last day of employment since commissions cease with employment. EMPLOYEE will be responsible for any tampering with information on the computer and cost associated with any damage to or return of the equipment and materials. This Agreement shall be interpreted under Pennsylvania law and ~-suit shall be instituted in Pennsylvania in a court of competent jurisdiction. EMPLOYEE consents to the personal Jurisdiction of the Pennsylvania courts. In connection with employment you will receive an employee handbook which provisions are incorporated herein. By: J. CORPORATION Date: It I /,r--d 1/03 ~NlrilT --3 Page 1 of 1 Donald Isabella From: Ben Brecht [bbrecht03@yahoo.com] Sent: Friday. November 11 J 2005 2:58 PM To: disabella@qbwc.com Subject: December/Cell Phone Hi Don, To put yesterday's conversation in writing: I am attending two[2] weddings in December and will require Friday travel. I originally thought that I would be traveling on Dec. 9th and De. 16th, but after looking at my calender, I will be traveling on December 2nd and December 9th, instead. Both weddings are in Florida [Orlando and Naples]; I will be returning on Sunday [Dec. 4th and Dec. 11 th, respectively]. I will be able to come to Harrisburg on December 16th, if that is still your plan. I looked at cellular phones and calling plans again today and found the following: Sprint phones DO NOT have the capability to download the tracking devices you require, as I was originally told. So I am going to have to purchase a Nextel Phone. Also, we will have the "walkie- talkie" feature. Like I said, I want to purchase a phone with PDA capabilities. I will go over expenses with you in Hairisburg. As mentioned earlier, the flight from ATL to Philadelphia was $508.98. Thanks Don, I look forward to seeing you. Ben Yahoo! FareChase - Search multiple travel sites in one click. E: X- "'/"3, IT. ~ 11/14/2005 VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Complaint is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Quality Builders Warranty Corporation Date: f. ~. 0 " By: ~"*@-- Jordan F. Olshefski, Vice President CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Complaint was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Stephen P. Smith Wix, Wenger & Weidner 508 North Second Street Post Office Box 845 Harrisburg, P A 17108 Date: 7/S-/{}(P ----n-;~q~..l- /'Yl~h, Margar Momson, Secretary ~ r--:> g , j -n C- --: c:: r- " . 0 -0 3: iSi : 0\ .-.'! .< .~ QUALITY BUILDERS WARRANTY CORPORATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. 06-3679 BENJAMIN B. BRECHT Defendant : CIVIL ACTION - LAW NOTICE TO PLEAD TO: QUALITY BUILDERS WARRANTY CORPORATION, 325 North Second Street, Wormleysburg, PA 17043 YOU ARE HEREBY NOTIFIED to plead to the within New Matter within twenty (20) days from service hereof, or a default jUdgment may be entered against you. Wix, Wenger & Weidner Date: 7/3'/171, I By)4l f! {;,crf Stephen P. Smith, Esquire, 1.0. # 93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant Benjamin B. Brecht QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER AND NOW, comes Defendant, Benjamin B. Brecht. by and through his attorneys, Stephen P. Smith, Esquire and the law firm of Wi x, Wenger & Weidner, and files this Answer and New Matter, stating as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. Brecht was referred to QBW as a candidate for a territory/account manager for Atlanta, Georgia. 4. Admitted with clarification. Admitted that Don Isabella traveled to Atlanta, Georgia to interview Brecht, however Brecht was not the only candidate Isabella interviewed during his trip to Atlanta, as Isabella interviewed several other candidates. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted with clarification. Jim Conlin is the stepfather of Brecht and an employee of Brican. By way of further answer, Jim Conlin had been Brecht's direct supervisor until approximately July of 2005, thus it was appropriate for Brecht to submit a letter from Jim Conlin as a reference. 11. The writings attached to Plaintiffs Complaint as Exhibits "1" and "2" are a writing that speaks for itself. Plaintiffs allegations are specifically denied to the extent that they are not wholly consistent with the writings. 12. Denied. Whereas the Allegation in paragraph 12 of the Plaintiffs' Complaint refers to a writing prepared by Jim Conlin, Brecht is not in a position to aver as to the accuracy of the contents of the writing. 13. Admitted. 14. Admitted. 15. Admitted only that Brecht's first day of employment with QBW was to commence on November 14, 2005. The other allegations within paragraph 15 are denied, and proof demanded. 16. Denied as stated. When Brecht accepted the employment with QBW the parties did not have any discussions regarding whether Brecht would remain an employee of Brican, and Brecht never indicated that he would terminate his employment with Brican. 17. The writing attached to Plaintiff's Complaint as Exhibit "3" is a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writing. 18. The writing attached to Plaintiff's Complaint as Exhibit "3" is a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writing. 19. The writing attached to Plaintiff's Complaint as Exhibit "4" is a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writing. 20. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 21. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 22. Denied as stated. Brecht never represented that he resigned from Brican. By way of clarification, it is admitted that Brecht continued to sell products for Srican on weekends and evenings, when he was not working for QBW, the practice of which was not prohibited by the employment agreement Brecht signed with OBW. 23. Admitted. 24. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 25. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 26. Admitted. 27. Denied. The averments contained in Paragraph 27 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 28. Admitted. 29. Admitted. 30. Denied. Plaintiffs paragraph 30 is specifically denied, and strict proof is demanded. 31. Denied. 32. Denied. The averments contained in Paragraph 32 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 33. Denied. The averments contained in Paragraph 33 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 34. Denied. The averments contained in Paragraph 34 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 35. Denied. The averments contained in Paragraph 35 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. NEW MATTER 36. Paragraph numbers 1 though 35 are incorporated herein by reference. 37. QBW compensated Brecht by directly depositing his paycheck into a checking account Brecht had with Bank America. 38. On or about November 30, 2005, Brecht received compensation from QBW in the amount of $402.30, as compensation for the week of November 14, 2005 through November 19, 2005. However, the entire compensation was retained by QBW as a security deposit for the supplies given to Brecht in connection with the commencement of his employment with QBW. 39. On or about December 15, 2005, QBW deposited the amount of $2,011.23 into Brecht's bank account, which represented the compensation owed to Brecht for the weeks of November 28, 2005 through December 9, 2005. 40. On or about December 15, 2005, QBW canceled the direct deposit into Brecht's account, and withdrew the entire amount of $2,011.23, which represented Brecht's wages for the weeks of November 28,2005 through December 9, 2005. 41. To date, QBW has never compensated Brecht for the weeks of November 28,2005 through December 9, 2005, during which time Brecht was a full- time employee of QBW. 42. In addition, Brecht has never been compensated for the remainder of the time that he was a full-time employee of QBW, from December 9, 2005 through December 14, 2005, which compensation is equal to the amount of $655.26. 43. QBW terminated Brecht on December 14, 2005, and Brecht immediately returned the supplies he received from QBW, yet QBW refused to return Brecht's security deposit in the amount of $402.30. 44. To date. QBW has never reimbursed Brecht for the $402.30 of Brecht's wages that it retained as a security deposit. Count I - Violation of Pennsvlvania Waae Payment and Collection Act 45. Paragraphs 1 through 44 are incorporated herein by reference. 46. Under the Pennsylvania Wage Payment and Collection Act (the "Act"), 43 P.S. 9260.1 et sea., an employee may bring an action against an employer for unpaid wages that the employer was obligated to pay the employee. 47. Section 260.5 of the Act states that when an employee leaves the employ of an employer, the wages or compensation earned by the employee shall be due and payable as of the date of the next regular payday. 48. Under the Act, aBW was required to compensate Brecht for the time period of November 28, 2005 through December 14, 2005, and for the amount of compensation which aBW retained as a security deposit. 49. Brecht, through his counsel, has made demand upon counsel for aBW for the outstanding compensation to be paid to Brecht. 50. Despite demand, aBW has failed to compensate Brecht for the wages owing to Brecht for the total amount of $3,068.79, which is comprised of: $402.30 - Compensation for the week of November 14, 2005 through November 19, 2005. $2,011.23 - Compensation for the weeks of November 28, 2005 through December 9, 2005. $655.26 - Compensation for December 9,2005 through December 14, 2005. 51. aBW has failed to compensate Brecht, thereby willfully violating the Act. 52. Section 260.10 of the Act provides that if wages have not been paid to an employee for thirty days beyond the regularly scheduled payday and there is no good faith dispute regarding the amount of wages owed to the employee, the employee shall be entitled to liquidated damages equal to twenty-five percent (25%) of the total amount of wages due. 53. OBW has not raised a good faith dispute as to the amount of compensation owed to Brecht; therefore pursuant to Section 260.10 of the Act, OBW is liable to Brecht for liquidated damages in the amount of $767.20 ($3,068.79 x .25%). 54. Section 260.9(f) of the Act provides that an employer who has violated the Act is liable to the employee for the costs and reasonable attorneys fees incurred by the employee in seeking past due wages. 55. OBW has willfully violated the Act, therefore Brecht is entitled to the costs of this action and for reasonable attorneys fees incurred. WHEREFORE, Defendant respectfully requests this Court to find in favor of Defendant and grant Defendant the following relief: a. Award compensation owed to Defendant in the amount of $3,068.79 which remains unpaid as of the date of this Answer and New Matter; b. Award interest thereon; c. Assess liquidated damages against QBW in favor of Defendant, for QBW's willful violation of the Act in the amount of $767.20; d. Assess Defendant's attorney's fees against QBW. Respectfully Submitted, WIX, WENGER & WEIDNER Date: 713) )0(, I ' By: f~L f ;;:72 Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant, Benjamin B. Brecht Received: 7/281 e 14:41; .> WIX WENGER WEIDNER-; Page 7 'Froll: D7/28/2DlIB 16: 68 1828 P. IIJ7 VERIFICATION I, Benjamin B. Brecht, Defendant In the foregoing Answer and New Matter. have read the foregoing Answer and New Metter and hereby affirm and verify that It Is true and correct to the best of my personal knowledge. Information and belief. I verify that all of the statements made In the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.SA SectIon 4904, relating to unsworn falsmcatlon to authorttles. By: -J-IfII;tj. Benjamin B. Brecht DATE: July 28,2006 . QUALITY BUILDERS WARRANTY CORPORATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Answer to Complaint and New Matter, via first-class, postage prepaid U.S. Postal Service, upon the following: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: Auaust 1. 2006 8y cdhB Il~~ Harva Owings aughman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant, Benjamin B. Brecht ,.> ~ '~."~~' . f. . . r', - "- \-) :.'4 Quality Builders Warranty Corporation IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. DOCKET NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW PLAINT<<J"S REP,", Y TO DEFENPANT'S NEW MATI'J,:.R AND NOW this of August 2006 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within reply to Defendant's New Matter and avers as follows: 36. QBW incorporates herein its allegations in paragraphs I - 35 of its Complaint. 37. Admitted. 38. Denied. It is specifically denied that on November 30, 2005 Defendant received compensation from QBW in the amount of $402.30 or that the entire compensation was retained by QBW as a security deposit for the supplies given to Brecht in connection with the commencement of his employment with QBW. 39. Denied. It is specifically denied that on or about December 15,2005 QBW deposited the amount of$2011.23 into Brecht's bank account. Brecht was terminated from employment on December 14, 2005. By way of further answer no compensation is due from QBW to Brecht based on Brecht's fraudulent miSleplesentation. .. 40. Admitted in part and denied in part. It is admitted that on December 14, 2005 QBW notified its payroll vendor that Brecht was terminated and no further deposits should be made to Brecht's account. It is specifically denied that Brecht was entitled to any wages for the weeks November 28, 2005 through December 9, 2005. 41. Admitted in part and denied in part. It is admitted that QBW never compensated Brecht for the weeks November 28, 2005 through December 9, 2005 and it is specifically denied that any compensation is due and owing. QBW incorporates herein its allegations in paragraphs I - 35 of its Complaint. 42. Admitted in part and denied in part. It is admitted that Brecht was never compensated for the period December 9, 2005 through December 14,2005. QBW specifically denies that any compensation is due Brecht and incorporates herein its allegations in paragraphs I - 35 of its Complaint. 43. Admitted in part and denied in part. It is admitted that Brecht was terminated on December 14,2005 and the materials in his possession were surrendered. Brecht subsequently returned to Georgia and returned additional supplies. It is denied that any sums are due and owing Brecht and QBW incorporates herein by reference its allegations in paragraphs I - 35 of its Complaint. 44. Admitted in part and denied in part. It is admitted that Brecht did not receive the "security deposit" which was posted however it is specifically denied that any sums are due and owing Brecht based on his fraudulent misrepresentation. QBW incorporates herein its allegations in paragraphs 1 - 35 of its Complaint. 45. Paragraphs I - 35 of Plaintiff's Complaint are incorporated herein by reference. By way of further answer paragraphs 46 - 55 of Defendant's New Matter are irrelevant and are not proper allegations to be set forth in New Matter. 46. The allegations in paragraph 46 are Conclusions of Law to which no response is required and they are therefore denied. 47. The allegations in paragraph 47 are Conclusions of Law to which no response is required and they are therefore denied. 48. The allegations in paragraph 48 are Conclusions of Law to which no response is required and they are therefore denied. It is specifically denied that any compensation is due and owing Brecht and by way of further answer QBW incorporates herein its allegations in paragraphs I - 35 of its Complaint 49. Denied. It is specifically denied that Brecht, through his counsel, demanded outstanding compensation. Brecht's counsel proposed an offer of settlement wherein the letter contained what the counsel thought was due and owing however his conclusion was that Brecht would pay QBW the sum of$IOOO.oo. 50. Denied. It is specifically denied that any compensation is due Brecht and QBW incorporates herein by reference its allegations in paragraphs I - 35 ofits Complaint. 51. Denied. It is specifically denied that any compensation is due Brecht and QBW incorporates herein by reference its allegations in paragraphs I - 35 of its Complaint. 52. The allegations in paragraph 52 are Conclusions of Law to which no response is required and they are therefore denied. 53. Denied. It is specifically denied that QBW owes any amount of monies to Brecht. QBW incorporates herein its allegations in paragraphs I - 35 of its Complaint. 54. The allegations in paragraph 54 are Conclusions of Law to which no response is required and they are therefore denied. 55. Denied. It is specifically denied that any compensation is due Brecht and QBW incorporates herein by reference its allegations in paragraphs I - 35 of its Coinplaint. Wherefore, Plaintiff, Quality Builders Warranty Corporation, demands judgement against Defendant, Benjamin B. Brecht for the special damages identified in its Complaint, un-liquidated and punitive damages, said amount being less than $35,000.00. Respectfully Submitted, ~uire 325 North Second Street Wonnleysburg,PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Plaintiff's Reply to Defendant's New Matter is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Date: 'KIEFt ( b' Quality Builders Warranty Corporation By: -f~ Jordan F. Olshefski, Vice President C1 <::: -~ ?o" ..-c.'':-' 0\\-' -;z':'-' ./' (J> -""- ~ . 1";:'.'-: ~~~.\-=, '7~?), ..4 ....' ~ O~ .....~ (;'. G' ,,) r"" --0 ::~ o -n ..A ':)':.-<} ,,"\('- -(t1;:0, \"-" '(~() _'~ ~ d_, :,'.~'4"\ .::~~~, o /\ 7' ::1 L.'"? ..- cP . . , WIX, WENGER & WEIDNER Stephen P. Smith, Esquire ssmithavwwwpalaw.com 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant QUALITY BUILDERS : IN THE COURT OF COMMON PLEAS OF WARRANTY CORPORATION : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant : CIVIL ACTION - LAW DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AND NOW, comes Defendant, Benjamin B. Brecht, by and through its attorneys, Wix, Wenger & Weidner, and files this Motion for Partial Judgment on the Pleadings pursuant to Pa.R.C.P. NO.1 034, stating the following: 1. From November 14, 2005, through December 14, 2005, Defendant was a full-time employee of Plaintiff. 2. Plaintiff terrninated Defendant's employment on December 14, 2005. 1 , . , 3. On July 6, 2006, Plaintiff filed a Complaint with this Court, alleging that the Defendant committed fraud in inducing Plaintiff to hire Defendant. Attached as Exhibit A is a copy of Plaintiff's Complaint. 4. On July 23, 2006, Defendant responded to the Plaintiff's Complaint by filing an Answer and New Matter ("New Matter"), denying the allegations of fraud contained in Plaintiff's Complaint, and raising a counterclaim against the Plaintiff. Attached as Exhibit B is a copy of Defendant's New Matter. 5. In its New Matter, Defendant alleged Plaintiff committed a violation of the Wage Payment Collection Act by failing to compensate Defendant for the week of November 14, 2005 through November 19, 2005, and the weeks of November 28,2005 through December 14, 2005, during which time Defendant was a full-time employee of Plaintiff. 6. The Wage Payment Collection provides that an employer may be held liable for failing to compensate an employee, and entitles an employee to recover uncompensated wages, liquidated damages and reasonable attorneys fees. 7. On August 16, 2006, Plaintiff filed a Reply to Defendant's New Matter ("Reply"). Attached as Exhibit C is a copy of Defendant's Reply. 8. In its Reply, Plaintiff admitted that it intentionally failed to provide Defendant with compensation for the week of November 14, 2005 through November 19, 2005, and the weeks of November 28, 2005 through December 14, 2005. 2 9. Plaintiff claimed that it was not required to compensate the Defendant because of the allegations of fraud raised in its Complaint. 10. Even if all of the allegations of fraud contained in the Plaintiffs Complaint are correct, the Wage Payment Collection Act does not recognize fraud in the inducement as a defense to an employer's obligation to compensate an employee. 11. Plaintiffs admission within its Reply that it has intentionally withheld compensation to the Defendant for the week of November 14, 2005 through November 19, 2005, and the weeks of November 28, 2005 through December 14, 2005, constitute an admission to having violated the Wage Payment Collection Act. 12. All pleadings are closed and the filing of this motion will not unreasonably delay trial. 13. No issues of material fact exist with regard to this motion. 14. Defendant is entitled to judgment as a matter of law in that: a) Plaintiff admitted to intentionally withholding compensation frorn the Defendant in violation of the Wage Payment Collection Act; b) Plaintiff failed to raise a meritorious defense to Defendant's allegations that it violated the Wage Payment Collection Act. WHEREFORE, Defendant respectfully requests this Court to find in favor of Defendant and grant Defendant the following relief: 3 , a. Award compensation owed to Defendant in the amount of $3,068.79 which remains unpaid as of the date of the filing of this Motion; b. Award interest thereon; c. Assess liquidated damages against Plaintiff in favor of Defendant, for Plaintiff's willful violation of the Act in the amount of $767.20; d. Assess Defendant's attorney's fees against Plaintiff. Respectfully Submitted, WIX, WENGER & WEIDNER Date: 8'/21$/0'" By: ~ I!~ Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant, Benjamin B. Brecht 4 . . , . , Exhibit A . , Quality Builders Warranty Corporation IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff DOCKET NO. 06-3679 v. CIVIL ACTION BENJAMIN B. BRECHT Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written. appearance personally or by attomey 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 judgement 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 TIlE OFFICE SET FOR1H BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford St. Carlisle, PA 17013 (717) 249-3166 < . QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION BENJAMIN B. BRECHT DOCKET NO. 06-3679 Defendant COMPLAINT AND NOW, this 6th day of July, 2006 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendant and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty C~on (QBW) a Pennsylvania corporation engaged in the Ten Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. Defendant Benjamin B. Brecht (Brecht) is an adult individual residing at 2255 Peachtree Road NE, Unit 427, Atlanta, GA 30309. 3. QBW was desirous of hiring a National Account Executive for the state of Georgia and in October 2005 Brecht was referred as a candidate for employment by an agency. 4. On October 10, 2005 a telephone interview was conducted with Brecht and as a result of the information supplied by Brecht QBW's National Sales Director traveled to Atlanta, GA on October 14, 2005 and interviewed Brecht for the position. 5. Brecht submitted a resume reportedly outlining his past experience and current employment. 6. During the interview Brecht indicated that he was an employee of Brican had a base salary of $35,000.00 per year plus commission and earned $74,600.00 per year. 7. During the interview Brecht was requested by QBW to submit a list of employment references in order for QBW to perform their due diligence. 8. In response to QBW's request Brecht supplied three references via an email dated October 14, 2005. 9. One of the references supplied by Brecht was Jim Conlin who Brecht represented was his supervisor at his current employer, Brican Corporation. 10. In fact, Jim Conlin was the stepfather of Brecht and, although employed by Brican, was not the current supervisor of Brecht. II. In connection with the due diligence process Brecht supplied letters to QBW on Brican Corporation letterhead reportedly issued by Jim Conlin, Brecht's stepfather, congratulating Brecht on his performance as a sales representative for Brican Corporation. A true and' correct copy of said letters are attached hereto incorporated herein and marked as Exhibits 1 and 2. 12. In reference to Exhibit 1, an "Internal Memo" dated June 30, 2005 the individuals referred in the memo; Ron Meyers and Alex Johnson were never employees or representatives ofBrican. 13. In reference to Exhibit 2, a letter dated January 31,2005; Brecht did not even reside at 2255 Peachtree Road, Unit 47, and Atlanta, GA on January 31, 2005, which is the address contained in the letter. 14. Brecht did not reside at the Peachtree Road address until months after January 31, 2005. 15. As a result of the information supplied by Brecht and relied on by QBW Brecht was extended an offer of employment with QBW on October 26, 2005. Brecht's first day of full time employment with QBW was to commence on November 14,2005. 16. Brecht accepted the offer of employment and indicated he would resign his position at Brican. 17. Brecht commenced employment as agreed on November 14, 2005 and in connection with his employment executed an agreement containing a restrictive covenant dated November 14,2005. A true and correct copy of the agreement is attached hereto incorporated herein and marked as Exhibit 3. 18. The agreement indicates that the employment relationship shall be interpreted under Pennsylvania Law and that any suit shall be instituted in Pennsylvania in a court of competent jurisdiction. The agreement further indicates that Brecht consents to the personal jurisdiction of the Pennsylvania courts. '19. After acceptance of employment by Brecht but prior to his start date, Brecht forwarded an email to QBW on November 11, 2005 indicating that he would need days off to attend weddings in the state of Florida, those dates being Friday December 2nd and Friday December 9th. A true and correct copy of said email is attached hereto incorporated herein and marked as Exhibit 4. 20. Shortly after commencing employment QBW had reason to believe that Brecht was not devoting his full time to QBW employment as agreed. 21. On Tuesday, December 13th QBW contacted Brican, Brecht's prior employer, who confirmed that Brecht was still one of their sales representatives. 22. While employed by QBW Brecht continued to sell for Brican despite his representation that he resigned his position. 23. During Brecht's interview with QBW, Brecht indicated that his compensation at Brican consisted of a base salary plus commissions. 24. Brican indicated that Brecht was employed as an independent contractor since August 2005 and was not a salaried employee. 25. Brican further confirmed that Brecht's duties were to attend "geminsTS" in Florida to sell the Brican product. Typically these seminars would be on a weekend which would require attendance on Friday as well. 26. The email of November 11, 2005'sent by Brecht, attached as Exhibit 4, requesting time off for a wedding was false in that Brecht was actually requesting time off to attend seminars on behalf ofBrican on these dates. 27. Based on the above Brecht fraudulently induced QBW to hire him as a sales representative. 28. QBW terminated Brecht's employment on December 14, 2005. 29. Prior to his termination of employment with QBW on December 14, 2005, Brecht never informed Brican that he was a full time employee ofQBW. . . 30. In connection with the hiring process and employment of Brecht, QBW incurred expenses and fees as follows: 11130/05 Psyroll Paid 402.30 Paid Exnemes to Ben Dinner 11I18 (during initial training) Airfare 11/14 (to initial training) Tolls 11120 (during initial training) Total 13.44 549.78 4.25 567.47 Other EIDeJUes Dud for Ben Hotel (during initial training) 1,233.19 Business Cards 37.90 UPS (Supplies sent toBen) 9.93 Drug testing at hire 65.00 Delta (flight for retraining 12113. cancelled, CIedit in Ben'sll8lDC) 248.41 Hotel for retraining (12113) 128.52 Airtran flight to BWI for retraining (12113) 188.40 Airtran Flight to International builder show 166.90 HBA (dinner meeting attended) 40.00 Georgia Messenger Service 580.50 Total 2.698.75 Sales Manllller's Emeuses ineurred for Ben Sales Manager's salary (during Ben's training- 8 days) 2,452.08 Lunch and dinner (for Ben during initial training) 64.47 Atlanta Recruiting 470.72 Sales Manager's ride along (Airfare & Hotel, scheduled 12118105)427.46 (orig charge 63529 less partial credit of207.83) Total 3.414,73 Grand Total 7.083.25 31. Had Brecht been truthful QBW would not have hired him. 32. Based on Brecht's fraudulent misrepresentations and inducements QBW is entitled to recover all of its expenses and loss in connection with the hiring and employment of Brecht. 33. Brecht's conduct is willfuI and ou1rageous and as a result QBW is entitled to punitive namages. 34. In addition, Brecht violated his agreement with QBW including, among other things, diverting, diminishing and prejudicing the good will and business of QBW. 35. By virtue of the above Brecht breached his agreement and as a result of this breach and fraudulent inducement and lack of good faith intentions to engage in gainful employment with QBW Brecht is liable for the above stated damages in addition to unliquidated damages. Said amount being less than $35,000. Wherefore, Plaintiff, Quality Builders Warranty Corporation, de\1land~ judgement against Defendant, Benjamin B. Brecht for the special damages identified in the Complaint, unliquidated and punitive damages, said amount being less than $35,000. Respectfully Submitted, JOM . Gill, Esq. orth Second S1reet Wormleysburg, PA 27043 (71 7) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation ~ct 25 05 09:46a . , p.2 BRIC~N CORPORATI.ON wwwbricancoro,com - 405 641-5107 Jim Conlin National Division Manager Internal Memo TO: Territory Managers FROM: Jim Conlin SUBJECT: Sales Records & Announcement DATE: June 30, 2005 The foUowing sales reps have consistently remained at the top of their game since joining Brican and their accomplishments continue to demand the respect of their peers: 1) Ron Myers of Houston ranked NUMBER ONE in the nation for net sales. volume for the last three months and is a contender for National Salesman of the Year. 2) Ben Brecht of Georgia has ranked NUMBER iWO in sales fOf the last two consecutive months and is being considered for Q4 advancement. 3) Alex Johnson of Florida was promoted to Regional Manager over one of the most profitable territories in the nation. All the best to these professionals. They exemplify the integrity, professionalism and dedication that make Brican a great place to be. Keep up the good world Regards, Jim Conlin National Division Mgr. OCT 25 2005 E'->d.i J ~ r .:l. 5300 Southbe1Jd Road FrI.......... nlC 7-.R't4 Qet 26 05 09:46a . ' p.l - CORPORAT;ON www.bricancoro.coin ~ 405 641-5107 Jim Conlin National Division Manager January 31, 2005 Mr. Ben B. Brecht 2255 Peachtree Rd., Unit4Z7 Atlanta, GA 30309 Dear Ben: This 1s to congratulate you and formally announce that your production has set a new Brican record for the highest net sales volume in the first ninety days of employment. Your success as a sales representative has been very cornmendable and Brican rewards those who are trendsetters. . . As you know, Brican is an outstanding organizatjon with tremendous advancement opportunity. I wish you the best and I am sure your success will continue as it has in the past. . Sincerely, Jim Conlin National Division Mgr. OCT Z fJ. 2005 e: )CJ..h.~ T D2.- 5300 Southbend Road Edmond. OK 73034 AGREEMENT This Agreement is made 00 the 1411> day of November, 2005 between QUALITY BUILDERS WARRANTY CORPORATION, "QBW", and BEN B. BRECHT, "EMPLOYEE" WHEREAS, QBW desires to employ EMPLOYEE as an at-will employee and whereas, EMPLOYEE desires to be employed by QBW as an at-will employee. WHEREAS, as prerequisite for employment with QBW, EMPLOYEE must execute this agreement cootaining a restrictive covenant. Now, TIIEREFORE, in consideration of the mutual promises set forth herein and intending to be legally bolmd hereby, it is agreed between QBW and EMPLOYEE as follows: EMPLOYEE agrees that at no time during the term of employment, and for a period of two (2) years immediately foU(;wing the termination of employment, will he/she, for himselflherself or on behalf of any person other than QBW, -"'be employed by or in any way become affiliated with any other warranty program or engage in the recruitment of builders for and in connection with any competitor of QBW in the states where QBW dlies business. EMPLOYEE also agrees that any and all records, computer or other, including but not limited to the names and addresses of builders registered in the Program and any other records relating in any manner whatsoever to the business and operation of Q:ijW, applicant builders orprospective applicants, prospect cards, whether compiled or prepared by EMPLOYEE, or ....&erwise coming into hislher possession, including copies, or computer databases, shall be the exclusive property of QBW and will be returned to QBW immediately upon termination of employment. EMPLOYEE agrees not to make copies of any informatioo provided to himlher or copy any information on or from computer software. EMPLOYEE shall not at any time directly or indirectIy, use or disclose to any person, except to QBW and its duly authorized ~cers and employees eotitIed thereto, the list of prospective, registered or applicant builders, their credit classifications, records, statistiCS; at ather informatioo with respect to registered or applicant builders, or information learned concerning' the QBW program including rates; revenues, insurance relationships, policy limits, etc., llCqUired ~LOYEE or anyone else in the course of the performance of hislher duties in any capacity whatsoever since '-4his information is confideotial and not available to the public. EMPLOYEE shall not in any manner, directly or indirectly, aid or be party to any acts, the effect of which would divert, diminish or prejudice the good will or business . of QBW, or its relationships with its employees; past arid present or future as well as its business ,and regulatory . . re~ps. No compensation due will be paid untiI all materials, including computer hardware or so:ltwlm, are ~ed in good and working conditioo and in the same condition received, normal wear and tear excepted. Additiona1ly no commissioos will be paid after the last day of employment since commissions cease with employment. EMPLOYEE will be responsible for any tampering with infonnation on the computer and cost associated with any damage to or return of the equipment and materials. This Agreement shall be interpreted under Pennsylvania law and ~ sh'a1I be instituted in Pennsylvania in a court of competent jurisdiction. EMPLOYEE consents to the personal Jurisdiction of the Peonsylvania courts. In connection with employment you will receive an employee handbook which .provisions are incorporated herein. By: J. CORPORATION Date: %/or-- 1/03 .cx-;.J;/iI'3 . . Page I of I Donald Isabella From: Ben Brecht [bbrecht03@yahoo.com] Sent: Friday, November 11, 2005 2:58 PM To: disabella@qbwc.com Subject: December/Cell Phone Hi Don, To put yesterday's conversation in writing: I am attending two[2] weddings in December and will require Friday travel. I originally thought that I would be traveling on Dec. 9th and De. 16th, but after looking at my calender, I will be traveling on December 2nd and December 9th, instead, Both weddings are in Florida [Orlando and Naples]; I will be returning on Sunday [Dec. 4th and Dec. II th, respectively]. I will be able to come to Harrisburg on December 16th, if that is still your plan. I looked at cellular phones and calling plans again today and found the following: Sprint phones DO NOT have the capability to download the tracking devices you require, as I was originally told. So I am going to have to purchase a Nextel Phone. Also, we will have the "walkie- talkie" feature. Like I said, I want to purchase a phone with PDA capabilities. I will go over expenses with you in Hairisburg. As mentioned earlier, the flight from ATL to Philadelphia was $508.98. Thanks Don, I look forward to seeing you. Ben Yahoo! FareChase - Search multiple travel sites in one click. -- hXJ./-I tilT .y 11/14/2005 . , VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Complaint is true and correct to the best of my knowledge, infonnation and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~904, relating to unsworn falsification to authorities. Quality Builders Warranty Corporation Date: '1.~. 0[, By: 1+~ Jordan F. Olshefski, Vice President . . CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Complaint was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Stephen P. Smith WlX, Wenger & Weidner 508 North Second Street Post Office Box 845 Harrisburg,PA 17108 Date: 7/S/0(,. l?7:::Jt..J- /tllMA u.m Mar Morrison, Secretary Exhibit B QUALITY BUILDERS WARRANTY CORPORATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT -~ --!-:;.....l Defendant : CIVIL ACTION - LAW j"'.' NOTICE TO PLEAD r)- _J :.~, ...... TO: QUALITY BUILDERS WARRANTY CORPORATION, 325 North Second Street, Wormleysburg, PA 17043 YOU ARE HEREBY NOTIFIED to plead to the within New Matter within twenty (20) days from service hereof, or a default judgment may be entered against you. Wix, Wenger & Weidner Date: 7/3'/01, r BY)t,Z f? ~ Stephen P. Smith, Esquire, J.D. # 93349 508 North Second Street . P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Stephen P. Smith, Esquire Wix, Wenger & Weidner P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant Benjamin B. Brecht QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER AND NOW, comes Defendant, Benjamin B. Brecht, by and through his attorneys, Stephen P. Smith, Esquire and the law firm of Wix, Wenger & Weidner, and files this Answer and New Matter, stating as follows: 1. Admitted. 2. . Admitted. 3. Denied as stated. Brecht was referred to QBW as a candidate for a territory/account manager for Atlanta, Georgia. 4. Admitted with clarification. Admitted that Don Isabella traveled to Atlanta, Georgia to interview Brecht, however Brecht was not the only candidate . Isabella interviewed during his trip to Atlanta, as Isabella interviewed several other candidates. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted with clarification. Jim Conlin is the stepfather of Brecht and an employee of Brican. By way of further answer, Jim Conlin had been Brecht's direct supervisor until approximately July of 2005, thus it was appropriate for Brecht to submit a letter from Jim Conlin as a reference. 11. The writings attached to Plaintiffs Complaint as Exhibits "1" and "2" are a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writings. 12. Denied. Whereas the Allegation in paragraph 12 of the Plaintiffs' Complaint refers to a writing prepared by Jim Conlin, Brecht is not in a position to aver as to the accuracy of the contents of the writing. 13. Admitted. 14. Admitted. 15. Admitted only that Brecht's first day of employment with QBW was to commence on November 14, 2005. The other allegations within paragraph 15 are denied, and proof demanded. 16. Denied as stated. When Brecht accepted the employment with QBW the parties did not have any discussions regarding whether Brecht would remain an employee of Brican, and Brecht never indicated that he would terrninate his employment with Brican. 17. The writing attached to Plaintiffs Complaint as Exhibit "3" is a writing that speaks for itself. Plaintiffs allegations are specifically denied to the extent that they are not wholly consistent with the writing. 18. The writing attached to Plaintiffs Complaint as Exhibit "3" is a writing that speaks for itself. Plaintiffs allegations are specifically denied to the extent that they are not wholly consistent with the writing. 19. The writing attached to Plaintiffs Complaint as Exhibit "4" is a writing that speaks for itself. Plaintiffs allegations are specifically denied to the extent that they are not wholly consistent with the writing. 20. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 21. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 22. Denied as stated. Brecht never represented that he resigned from Brican. By way of clarification, it is admitted that Brecht continued to sell products for Brican on weekends and evenings, when he was not working for QBW, the practice of which was not prohibited by the employment agreement Brecht signed with QBW. 23. Admitted. 24. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 25. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 26. Admitted. 27. Denied. The averments contained in Paragraph 27 express conclusions of law to which no answer is required. To the extent the averments express a statement offact, the averments are denied. 28. Admitted. 29. Admitted. 30. Denied. Plaintiffs paragraph 30 is specifically denied, and strict proof is demanded. 31. Denied. 32. Denied. The averments contained in Paragraph 32 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 33. Denied. The averments contained in Paragraph 33 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 34. Denied. The averments contained in Paragraph 34 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 35. Denied. The averments contained in Paragraph 35 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. NEW MATTER 36. Paragraph numbers 1 though 35 are incorporated herein by reference. 37. QBW compensated Brecht by directly depositing his paycheck into a checking account Brecht had with Bank America. 38. On or about November 30, 2005, Brecht received compensation from QBW in the amount of $402.30, as compensation for the week of November 14,2005 through November 19,2005. However, the entire compensation was retained by QBW as a security deposit for the supplies given to Brecht in connection with the commencement of his employment with QBW. 39. On or about December 15, 2005, QBW deposited the amount of $2,011.23 into Brecht's bank account, which represented the compensation owed to Brecht for the weeks of November 28, 2005 through December 9,2005. 40. On or about December 15, 2005, QSW canceled the direct deposit into Brecht's account, and withdrew the entire amount of $2,011.23, which represented Brecht's wages for the weeks of November 28, 2005 through December 9, 2005. 41. To date, QBW has never compensated Brecht for the weeks of November 28, 2005 through December 9, 2005, during which time Brecht was a full- time employee of QBW. 42. In addition, Brecht has never been compensated for the remainder of the time that he was a full-time employee of QBW, from December 9,2005 through December 14, 2005, which compensation is equal to the amount of $655.26. 43. QBW terminated Brecht on December 14, 2005, and Brecht immediately returned the supplies he received from QBW, yet QBW refused to return Brecht's security deposit in the amount of $402.30. 44. To date, QBW has never reimbursed Brecht for the $402.30 of Brecht's wages that it retained as a security deposit. Count I - Violation of Pennsylvania Waae Payment and Collection Act 45. Paragraphs 1 through 44 are incorporated herein by reference. 46. Under the Pennsylvania Wage Payrnent and Collection Act (the "Act"), 43 P.S. 9260.1 et sea., an employee may bring an action against an employer for unpaid wages that the employer was obligated to pay the employee. 47. Section 260.5 of the Act states that when an employee leaves the employ of an employer, the wages or compensation earned by the employee shall be due and payable as of the date of the next regular payday. 48. Under the Act, QBW was required to compensate Brecht for the time period of November 28, 2005 through December 14, 2005, and for the amount of compensation which QBW retained as a security deposit. 49. Brecht, through his counsel, has made demand upon counsel for QBW for the outstanding compensation to be paid to Brecht. 50. Despite demand, aBW has failed to cornpensate Brecht for the wages owing to Brecht for the total amount of $3,068.79, which is comprised of: $402.30 - Compensation for the week of November 14, 2005 through Novernber 19. 2005. .$2.011.23 - Compensation for the weeks of November 28, 2005 through December 9, 2005. $655.26 - Compensation for December 9,2005 through December 14, 2005. 51. QBW has failed to compensate Brecht, thereby willfully violating the Act. 52. Section 260.10 of the Act provides that if wages have not been paid to an employee for thirty days beyond the regularly scheduled payday and there is no good faith dispute regarding the amount of wages owed to the employee, the employee shall be entitled to liquidated damages equal to twenty-five percent (25%) of the total amount of wages due. 53. QBW has not raised a good faith dispute as to the amount of compensation owed to Brecht; therefore pursuant to Section 260.10 of the Act, QBW is liable to Brecht for liquidated damages in the amount of $767.20 ($3,068.79 x .25%). 54. Section 260.9(f) of the Act provides that an employer who has violated the Act is liable to the employee for the costs and reasonable attorneys fees incurred by the ernployee in seeking past due wages. 55. QBW has willfully violated the Act, therefore Brecht is entitled to the costs of this action and for reasonable attorneys fees incurred. WHEREFORE, Defendant respectfully requests this Court to find in favor of Defendant and grant Defendant the following relief: a. Award compensation owed to Defendant in the amount of $3,068.79 which remains unpaid as of the date of this Answer and New Matter; b. Award interest thereon; c. Assess liquidated damages against QSW in favor of Defendant, for QBW's willful violation of the Act in the amount of $767.20; d. Assess Defendant's attorney's fees against QBW. Respectfully Submitted, WIX, WENGER & WEIDNER Date: 7 h) ) 0 (, I . By: !4,L f ~y2 Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant, Benjamin B. Brecht Froll: D7/28/2DDS 16:69 1828 P. 007 VERlFlCATtON , I, Benjamin B. Brecht, Dafendant In the foregoing Answer and New Matter, haw read the foregOing AnrNi8T and New Matter and hereby affirm and verify that It Is true and correct to the best of my pensonal knowledge, Information and belief. I verify that all of the statements rnade In the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. SectIon 4904, relating to unsworn falsmcatlon to authorities. DATE: July 28, 2006 - / f(f~ By: ~ .M '-.".. Benjamin B. Brecht QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Answer to Complaint and New Matter, via first-class, postage prepaid U.S. Postal Service, upon the following: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: Auaust 1. 2006 8Y.~12;.~ Harva Owings aughman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant, Benjamin B. Brecht Exhibit C ( Quality Builders Warranty Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. DOCKET NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW PL~'S REPLY TO DEFENDANT'S NEW MAnER AND NOW this of August 2006 comes the plaintiff, Quality Builders Warranty Corporation (QBW) and files the within reply to Defendant's New Matter and avers as follows: 36. QBW incorporates herein its allegations in paragraphs 1 - 35 ofits Complaint. 37. Admitted. 38. Denied. It is specifically denied that on November 30, 2005 Defendant received compensation from QBW in the amount of $402.30 or that the entire compensation was retained by QBW as a secmity deposit for the supplies given to Brecht in connection with the commencement of his employment with QBW. 39. Denied. It is specifically denied that on or about December 15, 2005 QBW deposited the amount of$2011.23 into Brecht's bank account. Brecht was termina~ from employment on December 14, 2005. By way of further answer no compensation is due from QBW to Brecht based on Brecht's fraudulent misrepresentation. ( , 40. Admitted in part and denied in part. It is admitted that on December 14,2005 QBW notified its payroll vendor that Brecht was terminsrtPJi. and no further deposits should be made to Brecht's account. It is specifically denied that Brecht was entitled to any wages for the weeks November 28, 2005 through December 9,2005. 41. Admitted in part and denied in part. It is admitted that QBW never compensated Brecht for the weeks November 28,2005 through December 9, 2005 and it is specifically denied that any compensation is due and owing. QBW incorporates herein its allegations in paragraphs 1- 35 of its Complaint. 42. Admitted in part and denied in part. It is admitted that Brecht was never compensated for the period December 9, 2005 through December 14,2005. QBW specifically denies that any compensation is due Brecht and incorporates herein its allegations in paragraphs 1 - 35 of its Complaint. 43. Admitted in part and denied in part. It is admitted that Brecht was termin"t..q on December 14,2005 and the materials in his possession were surrendered. Brecht subsequently returned to Georgia and returned additional supplies. It is denied that any sums are due and owing Brecht and QBW incorporates herein by reference its allegations in paragraphs I - 35 of its Complaint. 44. Admitted in part and denied in part. It is admitted that Brecht did not receive the "security deposit" which was posted however it is specifically denied that any sums are due and owing Brecht based on his fraudulent misrepresentation. QBW incorporates herein its allegations in paragraphs 1 - 35 of its Complaint. 45. Paragraphs I - 35 ofPlaintifi's Complaint are incorporated herein by reference. By way of further answer paragraphs 46 - 55 of Defendant's New Matter are irrelevant and are not proper allegations to be set forth in New Matter. ( ( 46. The allegations in paragraph 46 are Conclusions of Law to which no response is required and they are therefore denied. 47. The allegations in paragraph 47 are Conclusions of Law to which no response is required and they are therefore denied. 48. The allegations in paragraph 48 are Conclusions of Law to which no response is required and they are therefore denied. It is specifically denied that any compensation is due and owing Brecht and by way of further answer QBW incorporates herein its allegations in paragraphs I - 35 of its Complaint. 49. Denied. It is specifically denied that Brecht, through his counsel, demanded outstanding compensation. Brecht's counsel proposed an offer of settlement wherein the letter contained what the counsel thought was due and owing however his conclusion was that Brecht would pay QBW the sum of$ 1 000.00. 50. Denied. It is specifically denied that any compensation is due Brecht and QBW incorporates herein by reference its allegations in paragraphs 1 - 35 of its Complaint. 51. Denied. It is specifically denied that any compensation is due Brecht and QBW incorporates herein by reference its allegations in paragraphs 1 - 35 of its Complaint. 52. The allegations in paragraph 52 are Conclusions of Law to which no response is required and they are therefore denied. 53. Denied. It is specifically denied that QBW owes any amount of monies to Brecht. QBW incorporates herein its allegations in paragraphs I - 35 of its Complaint. 54. The allegations in paragraph 54 are Conclusions of Law to which no response is required and they are therefore denied. 55. Denied. It is specifically denied that any compensation is due Brecht and QBW incorporates herein by reference its allegations in paragraphs 1 - 35 of its Complaint. Wherefore, Plaintiff, Quality Builders Warranty Corporation, demands judgement against Defendant, Benjamin B. Brecht for the special damages identified in its Complaint, un-liquidated and punitive damages, said amount being less than $35,000.00. Respectfully Submitted, ~uire 325 North Second S1reet WormIeysburg, PA 17043 (717) 737-2522 #41532 Attomey for Plaintiff Quality Builders Warranty Corporation CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Plaintiff's Reply to Defendant's New Matter was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedme, addressed as follows: Stephen P. Smith, Esquire Wix, Wenger & Weidner 508 North Second Street Post Office Box 845 Harrisburg, PAl 7I 08 Date: cis' Idol ) bf&, . ~M~A'~~ orrison, Secretary . ' QUALITY BUILDERS WARRANTY CORPORATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Defendant's Motion for Partial Judgment on the Pleadings, via first-class, postage prepaid U.S. Postal Service, upon the following: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: Auaust 28. 2006 - By: fA rva Owings Ba hman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant, Benjamin B. Brecht "'. , . QUALITY BUILDERS WARRANTY CORPORATION : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Defendant's Motion for Partial Judgment on the Pleadings, via first-class, postage prepaid U.S. Postal Service, upon the following: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: Auaust 28. 2006 - By: fA rva Owings Ba hman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant, Benjamin B. Brecht () "" C <':.:~" () C::J .~.. c-. " ,::-.. ::;j ...." Fl1 :n C') ,... l'"',) -C"IIT1 CD ?<:,? ):~t> :>:'i~~.l ~~ ) , , ) ') C') ;;. In , ...,' .:< , C-") ?5 -... -< .. WIX, WENGER & WEIDNER Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant QUALITY BUILDERS WARRANTY CORPORATION Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06.3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW WITHDRAWAL OF DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AND NOW, come Defendant, Benjamin B. Brecht, by and through its attorneys, Wix, Wenger & Weidner, and files this Withdrawal of Motion for Partial Judgment on the Pleadings, stating the following: 1. On or about August 27,2006, Defendant filed a Motion for Partial Judgment on the Pleadings. '. 2. Defendant respectfUlly requests the Court to allow the withdrawal of Defendant's Motion. Respectfully Submitted, WIX, WENGER & WEIDNER Date: September 05, 2006 By: ~~ f ~T Stephen P. Smith, Esq. ID #93349 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant Benjamin B. Brecht , QUALITY BUILDERS : IN THE COURT OF COMMON PLEAS OF WARRANTY CORPORATION : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. 06-3679 BENJAMIN B. BRECHT Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Withdrawal of Motion Partial Judgment on the Pleadings upon the following individual by first class, postage prepaid, United States Mail: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Attorney for Defendant Respectfully submitted, WIX, WENGER & WEIDNER Date: September 06, 2006 By: ~ (j)f~.I/dJ/I!OrJ Harva Owings 'l3aughm~: - , Legal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717)234-4182 D "" 0 C;;:) C = ,1 -- "-" '^ (/) :r!-,-, "TJ(~ ~:If- ('T'; rnp -t) . -0 rn .. I ~'''-fO (J) en :~) (11 .. , , ,::;:1.:.:;-, ~ ) .U11 ......"- (~) <: C) m c: CXl ^.-\ ~~ ?n ^-<. Cl -< WIX. WENGER & WEIDNER Stephen p, Smith, Esquire ssmith@wwwpalaw.com 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3679 BENJAMIN B, BRECHT Defendant : CIVIL ACTION - LAW DEFENDANT'S MOTION FOR PROTECTIVE ORDER TO STAY PLAINTIFF'S DEPOSITION OF DEFENDANT AND NOW comes the Defendant, Benjamin B. Brecht, by and through his attorneys, Stephen p, Smith, Esquire and the law firm of Wi x, Wenger & Weidner, and files this Motion for Protective Order To Stay Plaintiff's Deposition of Defendant, pursuant to Pa.R.C,P, 4012(a), stating as follows: 1. The Plaintiff, Quality Builders Warranty Corporation, is a Pennsylvania corporation with its principal place of business at 325 North Second Street, Wormleysburg, PA 17043. 2. The Plaintiff initiated this action by filing a Complaint in this Court on July, 6, 2006, 3, The Defendant, Benjamin B, Brecht, is an adult individual who currently resides at 2255 Peachtree Road, NE, Unit 427 Atlanta, Georgia, 30309, 1 4, On or about September 22, 2006, the Plaintiff filed a Notice of Oral Deposition Duces Tecum, scheduling a deposition of the Defendant to be held at the Plaintiff's offices in Wormleysburg, Pennsylvania, on October 23, 2006, at 10:00 a.m., and requesting that the Defendant bring with him certain documents. Attached as Exhibit A is a copy of the Plaintiffs Notice of Oral Deposition Duces Tecum, 5. Upon receiving the Plaintiffs Notice of Oral Deposition Duces Tecum, the Defendant, through his counsel, contacted the Plaintiff's counsel, and offered to produce the documentations requested by the Plaintiff, but asked that the Defendant be permitted to participate in the deposition by telephone from the Defendant's residence in Atlanta, Georgia, 6, The Plaintiff denied Defendant's request, and the demanded that the Defendant personally appear at the Plaintiff's place of business in Wormleysburg, Pennsylvania. 7, Pursuant to Rule 4012(a} of the Pennsylvania Rules of Civil Procedure, a court may, in the interest of justice, issue an order protecting a party from appearing at a deposition when it will cause a party to experience unreasonable annoyance, embarrassment, oppression, burden or expense. 8. Requiring the Defendant to travel from Atlanta, Georgia, to the Plaintiff's offices in Wormleysburg, Pennsylvania will cause the Defendant unreasonable oppression, burden and expense, namely: a. the Defendant will incur travel expenses in purchasing airline tickets necessary for traveling to and from Pennsylvania; 2 b, upon arriving in Pennsylvania, the Defendant will incur expenses in renting a vehicle; c, the Defendant will also incur expenses in arranging for meals and lodging in Pennsylvania, and; d, the Defendant will suffer lost wages as a result of missing two days of work. 9, It would be unreasonably burdensome, oppressive and expensive to require the Defendant to incur the expenses listed above, when the Defendant is willing and able to participate in the deposition through telephone, WHEREFORE, the Defendant respectfully requests that this Honorable Court enter the attached Protective Order staying the scheduling of Plaintiff's proposed depositions, and granting such other relief as this Court deems just and appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER By: ~ f? );:'71f Stephen P. Smith, 1.0. #93349 508 North Second Street P,O, Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant, Benjamin B. Brecht DATE: October 9.2006 3 Exhibit A ,- '-:--:: QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY PENNSYLVANIA : DOCKET # 06-3679 vs. '., BENJAMIN B. BRECHT : CIVIL ACTION - LA W Defendant NOTICE OF ORAL DEPOSITION DUCES TECUM TO: Benjamin B. Brecht C/O Stephen P. Smith, Esquire Wix, Wenger and Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 PLEASE TAKE NOTICE that the Plaintiff in the above-captioned matter, by and through his attorney, John A. Gill, Esquire, will take the deposition of the Defendant, Benjamin B, Brecht, upon examination in accordance with Pa. R.C.P 4007.1. The deposition will be taken before a person authorized to render an oath at the office of John A. Gill, Esquire, 325 North Second Street, Wormleysburg, PA 17043 on Monday, October 23,2006, at 10:00 a.m. The above-named is requested to appear at the aforementioned time and place and submit to examination under oath. The Deponent is to bring with him all documents in his possession concerning business conducted on behalf of Brican Corporation for the period November 14, 2005 up to and including December 14, 2005 and any and all documents supporting Defendant's Defense in this matter. Respectfully submitted, ~A. GILL, ESQUIRE ey for Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 Attorney 1.0. # 41532 DATE: f ;;2.2-.~G QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Motion for Protective Order To Stay Plaintiff's Deposition of Defendant was sent by first class mail, postage prepaid this day to the following: John A, Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: October 10, 2006 By: q/{);I;u(( [bi f1~ IrutdlJ!71/){~ Harva Owings aughman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant, Benjamin B, Brecht o c ?~~; f"-' C-'~,;' {,;.;.::) a.... c) (: ~ c> -1'1 .-\ -:T:-n f"'1-'P -"\ o (J,.; WIX. WENGER & WEIDNER Stephen P. Smith, Esquire ssmith@wwwpalaw.com 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM AND NOW, comes Defendant, Benjamin B. Brecht. by and through his attorneys, Stephen P. Smith, Esquire and the law firm of Wix, Wenger & Weidner, and files this Amended Answer and Counterclaim, stating as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. Brecht was referred to QBW as a candidate for a territory/account manager for Atlanta, Georgia. 4. Admitted with clarification. Admitted that Don Isabella traveled to Atlanta, Georgia to interview Brecht, however Brecht was not the only candidate 1 Isabella interviewed during his trip to Atlanta, as Isabella interviewed several other candidates. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted with clarification. Jim Conlin is the stepfather of Brecht and an employee of Brican. By way of further answer, Jim Conlin had been Brecht's direct supervisor until approximately July of 2005, thus it was appropriate for Brecht to submit a letter from Jim Conlin as a reference. 11. The writings attached to Plaintiff's Complaint as Exhibits "1" and "2" are a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writings. 12. Denied. Whereas the Allegation in paragraph 12 of the Plaintiffs' Complaint refers to a writing prepared by Jim Conlin, Brecht is not in a position to aver as to the accuracy of the contents of the writing. 13. Admitted. 14. Admitted. 15. Admitted only that Brecht's first day of employment with OBW was to commence on November 14, 2005. The other allegations within paragraph 15 are denied, and proof demanded. 2 16. Denied as stated. When Brecht accepted the employment with OBW the parties did not have any discussions regarding whether Brecht would remain an employee of Brican, and Brecht never indicated that he would terminate his employment with Brican. 17. The writing attached to Plaintiff's Complaint as Exhibit "3" is a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writing. 18. The writing attached to Plaintiff's Complaint as Exhibit "3" is a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writing. 19. The writing attached to Plaintiff's Complaint as Exhibit "4" is a writing that speaks for itself. Plaintiff's allegations are specifically denied to the extent that they are not wholly consistent with the writing. 20. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 21. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 22. Denied as stated. Brecht never represented that he resigned from Brican. By way of clarification, it is admitted that Brecht continued to sell products for Brican on weekends and evenings, when he was not working for QBW, 3 the practice of which was not prohibited by the employment agreement Brecht signed with aBW. 23. Admitted. 24. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 25. Denied. Plaintiff is without information or knowledge sufficient to reply to this paragraph, the same therefore being denied, and strict proof is demanded. 26. Admitted. 27. Denied. The averments contained in Paragraph 27 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 28. Admitted. 29. Admitted. 30. Denied. Plaintiff's paragraph 30 is specifically denied, and strict proof is demanded. 31. Denied. 32. Denied. The averments contained in Paragraph 32 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 4 33. Denied. The averments contained in Paragraph 33 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 34. Denied. The averments contained in Paragraph 34 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. 35. Denied. The averments contained in Paragraph 35 express conclusions of law to which no answer is required. To the extent the averments express a statement of fact, the averments are denied. COUNTERCLAIM 36. Paragraphs 1 though 35 are incorporated herein by reference. 37. Brecht was an employee of aBW from November 14, 2005 through December 14, 2005. 38. During the time period that Brecht was an employee of aBW, OBW compensated Brecht by directly depositing his paycheck into a checking account Brecht maintained with Bank America. 39. On or about November 30,2005, Brecht received payment from aBW in the amount of $402.30, as compensation for the week of November 14, 2005, through November 19, 2005. 40. Immediately after Brecht received the compensation in the amount of $402.30, OBW demanded that Brecht relinquish the entire sum to OBW, 5 to be held as a security deposit for the supplies given to Brecht in connection with the commencement of his employment. 41. Brecht complied with OBW's request, and allowed OBW to retain the amount of $402.30, which represented Brecht's compensation for the week of November 14, 2005 through November 19, 2005. 42. On or about December 15, 2005, OBW deposited the amount of $2,011.23 into Brecht's bank account, which represented compensation for the weeks of November 28, 2005 through December 9, 2005. Attached as Exhibit A is a statement from Brecht's account evidencing the deposit of $2,011.23 into Brecht's account by OBW. 43. On or about December 15, 2005, OBW canceled the direct deposit into Brecht's bank account, and withdrew the entire amount of $2,011.23. Attached as Exhibit B is a statement from Brecht's account evidencing the withdrawal of $2,011.23 from Brecht's account by OBW. 44. To date, OBW has not compensated Brecht for the weeks of November 28,2005 through December 9,2005. 45. Brecht is also owed compensation from OBW for the time period of December 9,2005 through December 14, 2005, in the amount of $655.26. 46. To date, OBW has not compensated Brecht for the time period of December 9, 2005 through December 14, 2005. 47. OBW terminated Brecht on December 14, 2005. 48. Immediately following his termination, Brecht returned the supplies he received from OBW. 6 49. Nonetheless, aBW refused to return Brecht's compensation for the week of November 14, 2005 through November 19, 2005, in the amount of $402.30, which aBW had claimed it was retaining as a security deposit. Count I - Violation of Pennsylvania Waae Payment and Collection Act 50. Paragraphs 1 through 49 are incorporated herein by reference. 51. The Pennsylvania Wage Payment and Collection Act (the "Act"), 43 P.S. 9260.1 et seq., provides that an employee may bring an action against an employer for unpaid wages which the employer was obligated to provide to the employee. 52. Section 260.5 of the Act provides that when an employee leaves the employ of an employer, the wages or compensation earned by the employee shall be due and payable as of the date of the next regular payday. 53. Under the Act, aBW was required to compensate Brecht for the time period which Brecht was an employee of aBW. 54. Brecht, through his counsel, has made demand upon aBW, through its counsel, that the outstanding compensation to be paid to Brecht. 55. Despite demand, aBW has failed to compensate Brecht for the wages owing to Brecht in the total amount of $3,068.79, which is comprised of: $402.30 - Compensation for the week of November 14, 2005 through November 19, 2005. $2.011.23 - Compensation for the weeks of November 28, 2005 through December 9, 2005. $655.26 - Compensation for December 9, 2005 through December 14, 2005. 7 56. OBW has failed to compensate Brecht, thereby willfully violating the Act. 57. Section 260.10 of the Act provides that if wages have not been paid to an employee for thirty days beyond the regularly scheduled payday and there is no good faith dispute regarding the amount of wages owed to the employee, the employee shall be entitled to liquidated damages equal to twenty-five percent (25%) of the total amount of wages due. 58. OBW has not raised a good faith dispute as to the amount of compensation owed to Brecht; therefore pursuant to Section 260.10 of the Act, OBW is liable to Brecht for liquidated damages in the amount of $767.20 ($3,068.79 x .25%). 59. Section 260.9(f) of the Act provides that an employer who has violated the Act is liable to the employee for the costs and reasonable attorneys fees incurred by the employee in seeking past due wages. 60. OBW has violated the Act, therefore Brecht is entitled to the costs of this action and for reasonable attorneys fees incurred. WHEREFORE, Defendant respectfully requests this Court to find in favor of Defendant and grant Defendant the following relief: a. award Defendant compensation in the amount of $3,068.79 which remains unpaid as of the date of this Answer and Counterclaim; b. award interest thereon; c. assess liquidated damages against 08W in favor of Defendant, for OBW's willful violation of the Act in the amount of $767.20; 8 d. assess Defendant's attorney's fees against QBW. Respectfully Submitted, WIX, WENGER & WEIDNER By: ~ f ;:~ Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Defendant, Benjamin B. Brecht DATE: October 9,2006 9 Exhibit A Z006-05-Z5 05:39pm From-ZZZZZZZZZ2Z 00000000000 lSank ot Amenca I Account AcllVlty I lransactIon.1JctaI.ls Screen T-337 P.004/005 F-464 Page 1 ofl ~ "'of.laleli~igllerStandard5 Online Ba Search . LOCltions . Mail. Help . ...__...._..._...__.__..___....._ __._.. ___. .... ...... - ...._........ ,. . ___.. ...._..._.__.......__... .__....._ . ... '0- _. . Accounts Bill Pay & e-BiIIs Transfer Funds Investments Customer Service Accounts Overview ~unt Activity Account Summary Find a Transaction Open an Account Transaction Detail Account Nickname: INTEREST CHECKING Account Type/Number: Interest Checking-3936 Type: ACH Credit Transaction Description~ aUALI1Y BUILDERS;DES=PAYROLL ;ID=611002730271D4G EFF DATE: 051215;INDN:BRECHT,BENJAMIN B Date: 12/15/2005 Reference Number: 00090235348 Amount: $2,011,23 l Return to Account Activity I a Secure Area Accounts ' Bill Pay &. ewBills . Transh:r Funds. Investments . Customer Service Privacy &. Security . SearCh . Locations . Mail. Help . Site Map . Sign Off Bank of America, N,A. Member fDIC, Equal HOuSing LenderGt e 2006 Bank of Ameriea Corporation, All rights reserved. https://onlineeast3.bankofamericacom/cgi-binliaslMMmm3HbWCmHer6GZKGwqm_tgn... 5/24/2006 Exhibit B Z006-05-Z5 05:40pm From-ZZZZZZZZZ, 00000000000 .. .--- -- - ------- I . ---...-.. -..o.a.....J I .. &IU.IJ",CAoI.lU.u .lJCUUCIi i:>>L:J:ct:n T-337 P.005/005 F-464 Page: 1 of I ..kofAnlerk;a "igherSbndards Online Ba Search . Locations ' Mall' Help Accounts Bill Pay & e-BiIIs Transfer Funds Investments Customer Service Accounts Overview ACCOunt ACtIvity Account s~mmary Find a Transaction Open an Account Transaction Detail Account Nickname: INTEREST CHECKING Account TypelNumber: Interest Checking-3936 Type: ACH Debit :r.msactlon Description: QUALllY BUILDERS;DES=REVERSAL ;ID=508004535054D4G EFF DATE: 051215;INDN:BRECHT,BENJAMIN B Date: 12/1512005 Reference Number: 00090235348 Amount: $2,011.23 f;: ';.\ ~ Return to Ac:count Activity l iii Secure Are.il Acc:ounts. Bill pay & c.BiIIs . Transfer Funds' Investments. Customer Servi.:e Privacy & SetIJritY . Search . Locations . Mail' Help . Site Map . SIgn Off Bank of America, N.A, Member FDIC. equal Housing Lender G:t @ 2006 Banlc..of America Corporation. All nghts reserved. https:llonlineeast3.bankofamerica.comlcgi-binliaslMMmm3HbWCmHer6GZKGwqnr_tgn... 5/2412006 VERIFICA liON I, Benjamin B. Brecht, Defendant in the foregoing Amended Answer and Counterclaim, have read the foregoing Amended Answer and Counterclaim and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C,S,A. Section 4904, relating to unsworn falsification to authorities. ;/:lIt/i'" . / By: ",' / <'" njamin B. Brecht DATE: September 25, 2006 QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Amended Answer and Counterclaim, via first-class, postage prepaid U.S. Postal Service, upon the following: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. 2nd Street Wormleysburg, PA 17043 Date: October 10, 2006 By: q/~ Owlfl(J~1JtCt1] Harva Owings Baughman, Paralegal Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 Attorneys for Defendant, Benjamin B. Brecht (~; !"'-',,) '':"----., '.:::.-:1 " c-") c., , (.J (:-) -n ::::J , " . ;-1 ~ -. QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. BENJAMIN B. BRECHT NO. 06-3679 CIVIL ACTION-LAW Defendant STIPULATION TO PERMIT DEFENDANT TO AMEND IDS ANSWER TO INCLUDE A COUNTER CLAIM On July 10, 2006 Plaintiff instituted the above action via Complaint. On August 1,2006 Defendant filed an Answer containing New Matter, On August 22, 2006 Plaintiff filed its reply to Defendant's New Matter. IT IS HEREBY STIPULATED by and between the parties herein, through their undersigned counsel, that Defendant be allowed to amend his Answer to include a Counterclaim, IT IS FURTHER STIPULATED that paragraphs 36 through 55 of Defendant's New Matter, which was filed on August 1,2006, as well .. Date: as Plaintiff's Reply to those paragraphs, filed on August 22, 2006, are withdrawn and deemed moot and will not be used for any purpose, 1 "'Z 1 /IJI/ FOR PLAINTIFF, QUALITY BUILDERS WARRANTY CORPORATION ~t~ FOR DEFENDANT, BENJAMIN B. BRECHT 94L f G~ Date: I t7 ~ () 2-' tJ r; Stephen P. Smith, Esquire SO ORDERED J ; 1;- ,-) 1,: (') C ~-'::' ~::-:;;) C::J cr-, c::; -"n :..:::! c' c: o co \~ -...J QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 06-3679 CIVIL BENJAMIN B. BRECHT, Defendant IN RE: DEFENDANT'S MOTION FOR PROTECTIVE ORDER ORDER AND NOW, this '2A day of October, 2006, a brief argument on the defendant's motion for protective order is set for Friday, November 17,2006, at 10:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. Pending argument, depositions are stayed. BY THE COURT, ~hn A. Gill, Esquire For the Plaintiff 44 ~hen P. Smith, Esquire F or the Defendant , :rlm '1/ii'~V/\-ll,S!'~f\E3d I "'Ii'~'-' " ,'.,. '."'~1AJn1"'\ 1\.Ll \! 1 : t,\,1 ~: ; ;j-:~,l!' t '"J i-J 0 :~ Wd OZ 1JO 900l AtN10NOH10bd 3H1 :10 3::Jr:i::lo-G31Ij QUALITY BULDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-3679 BENJAMIN B. BRECHT Defendant CIVIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND NOW comes Plaintiff, Quality Builders Warranty Corporatio~ by and through its attorney, John A. Gill, Esquire, and files the within Reply to Defendant's Motion For Protective Order and avers as follows: 1. Admitted, 2. Denied, Plaintiff instituted its action by filing a Complaint with District Justice Manlove on December 21, 2005, After numerous delays interposed by Defendant, the hearing was scheduled for June 1, 2006. Defendant did not appear at the time of hearing, Defendant appealed the District Justice Judgement and entered a Rule upon Plaintiff to file a Complaint. 3. Admitted. 4, Admitted, by way of further answer Plaintiff's counsel forwarded a letter to Defendant's counsel on August 16, 2006 requesting that Defendant's counsel provide dates on which Defendant would be available for deposition, Defendant's counsel failed to supply dates and therefore Plaintiff's counsel forwarded the Notice of Deposition after it was readily apparent Defendant's counsel was not going to cooperate with the scheduling of the deposition, 5, Admitted in part and denied in part, It is admitted that well after Defendant's counsel received the Notice of Deposition he contacted Plaintiff's counsel to attempt to have the depositions held by phone, which request was denied given the history of this matter and the continued delays interpose, by Defendant. 6, Admitted, by way of further answer Plaintiff did not demand that the Defendant personally appear rather Plaintiff informed Defendant's counsel that it wanted Defendant to appear at the designated time and place for the deposition as set for in the Notice, 7. Admitted, 8. Denied. Requiring the Defendant to travel from Atlanta, Georgia would not cause the Defendant unreasonable oppressio~ burden or expense. In fact, Defendant has interpose significant delays and caused Plaintiff extraordinary expense as follows: a) On December 21, 2005 Plaintiff instituted the within Action before District Justice Manlove b) Defendant refused to accept the certified mail containing the Complaint and Plaintiff had to enlist the service of a private process server to attempt to serve Defendant with its Complaint. c) Defendant avoided service on numerous occasions resulting in the process server having to attempt to serve the Defendant numerous times, which resulted in an added cost to Plaintiff of $580.50, d) After Defendant was served he entered a Notice to Defend with the District Justice and requested a Continuance of the original Hearing scheduled for February to retain counsel so he could appear at time of Hearing, e) The Hearing was rescheduled for June 1,2006 and although a Notice To Defend was entered and Defendant was in fact represented by counsel, Defendant failed to appear and further failed to advise Plaintiff that they were not going to appear resulting in additional cost to Plaintiff in having two individuals appear and wait at the District Justice office. 9, Denied. It would not be unreasonably burdensome for Defendant. Rather, Defendant has in fact caused Plaintiff substantial additional costs. Defendant executed an Agreement indicating that he consented to the personal jurisdiction of the Pennsylvania Courts and as such is well aware of the likelihood of appearing in the Pennsylvania Courts should a dispute arise. Additionally, Defendant has filed a Counter Claim against Plaintiff and as such Defendant by agreeing to the personal jurisdiction of the Pennsylvania Courts and availing himself of the benefits of filing a Counter Claim in the Pennsylvania Courts, should be made to respond to the allegations in the Complaint as well as the allegations in his Counter Claim through a deposition held in Pennsylvania. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Motion For Protective Order and direct the Defendant to appear at Plaintiff's counsel's office within thirty (30) days from date of Order for the purpose of a deposition and produce the documents requested in Plaintiff's Notice Of Deposition Duces Tecum. Respectfully submitted, CiO~A~ILL' ESQ~ Attorney for Quality Builders Warranty Corporation 325 North Second Street W ormleysburg, P A 17043 Attorney I.D, #41532 DATE: /,1 -- A ...~~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Plaintiff's Reply to Defendant's Motion For Protective Order was sent via V.S, Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Stephen P. Smith Wix, Wenger & Weidner 508 North Second Street Post Office Box 845 Harrisburg, P A 17108 Date: 1t)lo1~/ ~(, ~~~. Peg mson, Secretary (l ~::.:. ~~ r:::;;.:J <:;;:::1 C"" o -n c::) C') --I r....) -.l -n (r~ _I QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 06-3679 v. BENJAMIN B. BRECHT CIVIL ACTION Defendant PRAECIPE TO THE PROTHONOTARY: Please mark the above caption suit, which includes Plaintiff's Claim against Defendant, and Defendant's Counter Claim, as "Settled Discontinued and Forever Ended with Prejudice," ~~ Jo A. GIll, Esquue orth Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation 94L R ,~ Stephen P. Smith, Esquire 508 North Second Street P.O. Box 845 Hancisburg,PA 17108-0845 (717) 234-4182 #93349 Attorney for Defendant and Counter Claimant Benjamin B. Brecht ~ g ~ -g. c..- ""OcP ~ .-n~n ~ 'Z: :r_' , =z~~ - iJ? ~ ,;< .... ~e-1 J::': c' bO :PC: Z 3. ..-Q ::$. t? o cP ~ ~:n \~, 6~ '5ft'\ :;;;.\ ~