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HomeMy WebLinkAbout02-2575Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 MAmA TODARO McGUmE, an Adult Individual, Plaintiff V. ELrrt~ STAFFING SERVICES, INC., foxmerly known as CAPrrAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation trading as ELITE MEDICAL STAFFING; and BRIAN J. GAUGHAN, an Adult Individual, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2575 - Civil Term JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER AND AFFIRMATIVE DEFENSES REPLY TO NEW MATTER Plaintiff, Maria Todaro McGuire, through her attorneys, James A. Diamond, Esquire, and the law firm of Johnston & Diamond, P.C., hereby responds to the respective numbered allega- tions of Defendants' New Matter set forth as part of Defendants' Answer dated July 16, 2002 to Plaintiff's Amended Complaint, as follows: 53. The allegations in Paragraph 53 of Defendant's New Matter are denied. On the contrary, Plaintiff alleges that the Elite Medical Staffing Division had annual gross sales in ex- cess of $5 Million for fiscal year 2001. By way of further answer, Plaintiff incorporates by ref- erence the allegations in Paragraphs 13 through 25 and 31 of her Amended Complaint. Plaintiff further avers that Defendants never claimed that the $3,600.00 payment was intended by Defen- dants to be anything other than the "Bottom Line Bonus," and Defendants never claimed it to be some sort of non-required "good-faith gesture." Similarly, Plaintiff further avers that Defendants never claimed that the increasing of Plaintiff's base salary to $118,600.04~which was consistent with what was to occur under the Agreement when the $5 Million-per-year sales mark was met was intended by Defendants to be some sort of non-required "good-faith gesture." 54. Admitted in part; denied in part. It is admitted that Defendant Elite Staffing Ser- vices, Inc., paid to Plaintiff the sum of $3,600.00. The balance of the allegations in Paragraph 54 of Defendants' New Matter are denied. By way of further answer, Plaintiff hereby incorporates by reference her allegations in Paragraphs 22 and 23 of her Amended Complaint. 55. Admitted in part; denied in part. It is admitted that throughout much of the time of her employment with Defendant Elite Staffing Services, Inc., Plaintiff had access to relevant financial data. It is denied that she continued to have this access up until her last day of em- ployment. As is more specifically alleged in Paragraphs 24 through 28 of her Amended Com- plaint, which are incorporated herein by reference, Plaintiff did not have continuing access to full corporate financial information up until the termination of her employment by Defendants. The allegation in Paragraph 55 of Defendants' New Matter claiming that Plaintiff is estopped from demanding an accounting constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If this Court deems a response to be required, such allegation is denied in that the stated reason does not preclude an accounting as a matter of law. 56. The allegation in Paragraph 56 that Plaintiff is barred by the doctrine of Laches constitutes a conclusion of law to which no response is required under Pennsylvania Rules of Civil Procedure. In the event that this Court deems a response to such allegation to be necessary, the allegation is denied. By way of further answer, Plaintiff expressly disputed the underpay- ment of the bottom-line bonus prior to the filing of this litigation. Plaintiff's allegations in Para- graph 25 are incorporated herein by reference. REPLY TO AFFIRMATIVE DEFENSF~q Plaintiff further responds to the respective allegations set forth under the heading "Al- firmative Defenses" in Defendants' Answer to Amended Complaint as follows: 1. It is denied that thc legitimately calculated gross sales for the Medical Division failed to exceed the $5 Million threshold for triggering the increase in base salary and the right of Plaintiff to receive a Bottom-Line Bonus. By way of further answer, all conditions precedent to Plaintiff's right to receive the Bottom-Line Bonus for the fiscal year ending in October, 2001, have been properly satisfied. 2. Admitted in part; denied in part. It is only admitted that Plaintiff had broad access to relevant financial information during part of the time when she was an employee of Defendant Elite Staffing Services, Inc. It is denied that this continued up until the date of her termination. All other allegations in Paragraph 2 of Defendants' Affirmative Defenses are denied. The allegation that Plaintiff is estopped from asserting a breach of contract claim constitutes a con- clusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 3. The allegation in Paragraph 3 of Defendants' Affirmative Defenses constitutes solely a conclusion of law for which no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter Judgment in her favor and against Defendants on Plaintiff's Amended Complaint. Respectfully submitted, JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: July 31, 2002 ~/A~ES A. DIAMOND P~. I.D. No. 43902 Attorneys for Plaintiff 4 VERIFICATION I, MARIA TODARO MCGUmE, hereby verify that the statements contained in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Dated: '7- _'2a,_~ - ,2002 MARL~ TODARO MCGUmE CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Reply to Defendants' New Matter with Affirmative Defenses upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Philip J. Murren, Esquire Ball, Murren & Connell P. O. Box 1108 Harrisburg, PA 17108-I 108 (Counsel for Defendants) Dated: July 31, 2002 MARIA TODARO McGUIRE, an Adult Individual, Plaintiff ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation trading as ELITE MEDICAL STAFFING, and BRIAN J. GAUGHAN, an Adult Individual, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA NO. 02-2575 CIVIL TERM NOTICE TO PLEAD TO: Plaintiff, Maria Todaro McGuire c/o James A. Diamond, Esquire Johnston & Diamond, P.C. 150 Corporate Center Drive Suite 100 P.O. Box 98 Camp Hill, PA 17001-0098 You are hereby notified to file a written response to enclosed Answer, New Matter and Affirmative Defenses within twenty (20) days from the service hereof or a default judgment may be entered against you. ~.~~~. _ Philip J. Murren, EsquWe v PA I.D. No. 21426 Thomas A. Capper, Esquire PA I.D. No. 75020 Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Defendants Dated: July 16, 2002 Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 MARIA TODARO McGuIRE, an Adult IN THE COURT OF COMMON PLEAS, Individual, Plaintiff V. ELITE STAPt"LNG SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, [NC., a CUMBERLAND COUNTY, PENNSYLVANIA No. JURY TRIAL DEMANDED Pennsylvania Corporation trading as ELITE lViEDICAL STAFFING; and BRIAN J. GAUGHAN, an Adult Individual, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief re- quested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 MARIA TODARO McGUIRE, an Adult Individual, Plaintiff IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, PA NO. 02-2575 CIVIL TERM ELITE STAFFING SERVICES, INC., : formerly known as CAPITAL AREA : TEMPORARY SERVICES, INC., a : Pennsylvania Corporation trading : as ELITE MEDICAL STAFFING, : and BRIAN J. GAUGHAN, an Adult : Individual, : Defendants : Code: Answer to Amended Complaint Filed on behalf of Defendants Dated: July 16, 2002 Counsel of record: Philip J. Murren, Esquire PA I.D. No. 21426 Thomas A. Capper, Esquire PA I.D. No. 75020 Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attomeys for Defendants MARIA TODARO McGUIRE, an Adult Individual, Plaintiff ELITE STAFFING SERVICES, INC., : formerly known as CAPITAL AREA : TEMPORARY SERVICES, INC., a : Pennsylvania Corporation trading : as ELITE MEDICAL STAFFING, : and BRIAN J. GAUGHAN, an Adult : Individual, : Defendants : IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA NO. 02-2575 CIVIL TERM ANSWER TO AMENDED COMPLAINT AND NOW, come Defendants, Elite Staffing Services, Inc., and Brian J. Gaughan, by and through their counsel, Ball, Murren & Connell, and state the following Answer to the Amended Complaint herein: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. 11. 12. 13. 14. 15. 16. It is admitted that Defendants hired Plaintiff. The allegation that Plaintiff had "extensive experience and expertise in the temporary staffing field" lacks specificity and is therefore denied. It is admitted that Plaintiffs duties as Operations Manager included overseeing and attempting to develop and expand Elite's Medical and Home Health Services Division ("Medical Division"). It is denied that, at the commencement of Plaintiffs employment, the Medical Division had a temporary workforce of under 30 individuals. At that time, the Medical Division had a temporary workforce of over 40 individuals. The allegation that the Medical Division had been unable to produce any "significant profit" lacks specificity and is therefore denied. Denied. Defendant Corporation's sales for its fiscal year ending October 1999 were $1,687,952 of which more than $1 million were attributable to the Medical Division. Denied. The Medical Division had audited gross sales revenue of $4,775,866.98 for fiscal year ending October 2001. Admitted. Denied. The 2001 fiscal year consisted of 52 full weeks which ended on October 28, 2001. It is admitted that if the annual sales for the Medical Division exceeded $5 million for a fiscal year, as verified by the accountants for Defendant Elite Staffing Services, Inc., Plaintiff would have been entitled to a base salary increase and an additional bonus. 17. Admitted. 18. Denied. Defendant Gaughan stated that when he decided to sell the company Plaintiff would have the possibility of purchasing it. 19. Denied. The Medical Division had gross sales revenue of $4,775,866.98 for the fiscal year ending October 2001. 20. Denied. The Medical Division had gross sales revenue of $4,775,866.98 for the fiscal year ending October 2001. 21. Denied. The Medical Division had gross sales revenue of $4,775,866.98 for the fiscal year ending October 2001. Therefore, Plaintiff was not entitled to five (5) percent of the net profits from the Medical Division for fiscal year 2001. 22. Denied. The net profits for Defendant Corporation for fiscal year ending October 2001 were $36,196. 23. Denied. Sales for the Medical Staffing Division did not exceed $5 million for fiscal year 2001. Therefore, Plaintiff was not entitled to any alleged "Bottom Line Bonus." 24. It is denied that Defendant made any misrepresentations to Plaintiff. It is admitted that after the close of the 2001 fiscal year Defendant Gaughan correctly informed Plaintiff that sales for the Medical Staffing Division were under $5 million for the fiscal year and that Plaintiff would not be entitled to the increased base salary and the Bottom Line Bonus. 25. It is admitted that by virtue of her position as Operations Manager, Plaintiff, throughout the term of her employment, had access to the sales and expense data 3 The remaining allegations of paragraph 25 are of the Medical Division. specifically denied. 26. It is admitted that Defendant Gaughan provided an estimate of the anticipated net profits for the Defendant Corporation for fiscal year 2001. Defendant Gaughan further informed Plaintiff that the net profit total needed to be verified by the accountants for Defendant Corporation. 27. It is denied that Plaintiff ever demanded either verbally or in writing that Defendants provide "a meaningful explanation and show the expenses taken into account with actual corporate records and books." Defendant Gaughan informed Plaintiff that he would review the corporate income tax return and income statement with her after the accountants for Defendant Elite Staffing Services, Inc., had completed them. 28. Denied. Defendants did not restrict Plaintiffs access to financial records that she had been accustomed to reviewing. Throughout the entire term of her employment, Plaintiff continued to have access to the sales and expense data of the Medical Division. 29. It is admitted that Defendant Gaughan provided an estimate of the anticipated revenue for the Medical Division for fiscal year 2001. Defendant Gaughan further informed Plaintiff that the revenue total needed to be verified by the accountants for Defendant Elite Staffing Services, Inc. It is further admitted that Defendants paid Plaintiff $3,600 as a good faith gesture because she had almost reached her annual sales goal for fiscal year 2001. It is denied that the payment of $3,600 constituted the alleged "Bottom Line Bonus." 30. Denied. The allegations of¶ 30 of the Amended Complaint are specifically denied. To the contrary, Defendants at all times acted in confomfity with their legal obligations and made no misrepresentations to Plaintiff. 31. It is admitted that Plaintiffs base salary was increased to $118,600.04 as a good faith gesture because she had almost reached her annual sales goal for fiscal year 2001. It is denied that Plaintiffs salary was increased because she satisfied the terms of the Agreement. 32. It is denied that Plaintiff has any need to calculate the net profits of the Medical Division, in as much as the Division's sales revenue did not exceed $5 million for the fiscal year ending October 2001. 33. It is admitted that Defendants paid Plaintiff $3,600 as a good faith gesture because she had almost reached her annual sales goal for fiscal year 2001. It is denied that the payment of $3,600 constituted the alleged "Bottom Line Bonus." It is further denied that Defendants made any misrepresentation of net profits. 34. It is denied that Defendants made any misrepresentation of net profits. 35. It is denied that Plaintiffs performance was consistently good or that Plaintiff was entitled to the alleged "Bottom Line Bonus for fiscal year 2001." It is admitted that Plaintiffs position was eliminated effective April 15, 2002. 36. It is denied that Plaintiff is precluded from ever attempting to purchase the company should it ever be placed for sale. It is further denied that Defendants acted in bad faith. 5 37. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. COUNT I (Claim for Breach of Contract Against Defendant Elite Staffing Services, Inc.) 38. The answers set forth in Paragraphs 1 through 37 are hereby incorporated by reference. 39. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. At no time did Defendants ever violate any contract between Plaintiff and Defendant Corporation. 40. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. At all times, Defendant Corporation's actions with respect to Plaintiffs employment were lawful. 41. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. WHEREFORE, Defendants, Elite Staffing Services, Inc., and Brian J. Gaughan, respectfully requests that judgment be entered in their favor and against Plaintiff and that this Count be dismissed with prejudice. COUNT II (Pennsylvania Wage Payment and Collection Law Statutory Claim Against Elite Staffing Services, Inc.) 42. The answers set forth in Paragraphs 1 through 41 are hereby incorporated by reference. 43. Admitted. 44. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. 45. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at 46. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. 47. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. WHEREFORE, Defendants, Elite Staffing Services, Inc., and Brian J. Gaughan, respectfully requests that judgment be entered in their favor and against Plaintiff and that this Count be dismissed with prejudice. 48. 49. 50. COUNT III (Pennsylvania Wage Payment and Collection Law Statutory Claim Against Defendant Brian J. Gaughan) The answers set forth in Paragraphs 1 through 47 are hereby incorporated by reference. Admitted. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at trial. WHEREFORE, Defendants, Elite Staffing Services, Inc., and Brian J. Gaughan, respectfully requests that judgment be entered in their favor and against Plaintiff and that this Count be dismissed with prejudice. 51. 52. COUNT IV (Claim for Accounting Against Elite Staffing Services, Inc.) The answers set forth in Paragraphs 1 through 50 are hereby incorporated by reference. It is admitted that Defendant Corporation is in possession and control of financial records from which the net profits of the Medical Division for fiscal year 2001 have been computed. It is denied that Plaintiff is entitled to an accounting of 8 these records, in as much as she did not qualify for any sales-based "Bottom Line Bonus" for fiscal year ending October 2001. WHEREFORE, Defendants, Elite Staffing Services, Inc., and Brian J. Gaughan, respectfully requests that judgment be entered in their favor and against Plaintiff and that this Count be dismissed with prejudice. DEFENDANTS' NEW MATTER PURSUANT TO PA. R.C.P. 1030 In further answer to Plaintiff's Amended Complaint, Defendants aver the following new matter: 53. Defendants deny that Plaintiff fully performed the requirements for the incentives under the alleged contract referred to in the Amended Complaint. Defendants allege that Plaintiff failed to guide the Medical Division to over $5 million in gross sales revenue for fiscal year 2001 and, thus, failed to perfoim a condition precedent to the alleged contract's requirements for incentives: Since the Medical Division, under Plaintiff's guidance, did not surpass $5 million in gross sales revenue for fiscal year 2001, Plaintiff was not entitled to a "Bottom Line Bonus" according to the Agreement. 54. In or about December 2001, Defendants paid to Plaintiff the sum of $3,600 in lawful money. Since the net profits of the Defendant Corporation for fiscal year ending October 2001 were approximately $36,196, the payment to Plaintiff exceeded the amount of the "Bottom Line Bonus" that would have been due to Plaintiff if she had satisfied the conditions of the Agreement. 55. Defendants allege that Plaintiff, throughout the term of her employment, had access to all relevant financial data by which she could determine gross sales revenue for the Medical Division. She is, therefore, estopped from demanding an accounting for purposes of determining whether the Medical Division exceeded $5 million in gross sales revenue for fiscal year 2001. 56. Defendants allege that Plaintiffis barred from pursuing her claim for an accounting under the doctrine of laches by virtue of her acceptance of the $3,600 payment by Defendants and by her failure to make any further demand for the alleged "Bottom Line Bonus" until the initiation of this litigation. AFFIRMATIVE DEFENSES Plaintiff has failed to perfomi a condition precedent to establishing her right to seek relief for breach of her contract of employment, in as much as she failed to produce over $5 million in gross sales revenue for fiscal year ending 2001. Plaintiff is estopped from asserting a breach of contract claim because at all times she had access to gross sales revenue and expenses for the Medical Division. Plaintiff is barred by the doctrine of laches for the demand for an accounting. WHEREFORE, Defendants, Elite Staffing Services, Inc., and Brian J. Gaughan, respectfully requests that judgment be entered in their favor and against Plaintiff and that this Complaint be dismissed with prejudice. 10 Dated: July 16, 2002 BY: Respectfully submitted, BALL. MURREN & CONNELL Philip J. I~Iurren, Esquire I.D. No. 21426 Thomas A. Capper, Esquire I.D. No. 75020 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Defendants 11 VERIFICATION I, Brian J. Gaughan, on behalf of myself and Defendant Elite Staffing Services, Inc., hereby verify that the statements contained in the foregoing Answer to the Amended Complaint are true and correct to the best of my knowledge, information, and belief, and are made subject to penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Brian J. Gaughan ' Dated: July 16, 2002 CERTIFICATE OF SERVICE I, Philip J. Murren, Esquire, hereby certify that I placed a true and correct copy of Defendants' Answer to Plaintiff's Amended Complaint in the U.S. Mail, first-class, postage prepaid, this 16th day of July, to: James A. Diamond, Esquire Johnston & Diamond, P.C. 150 Corporate Center Drive Suite 100 P.O. Box 98 Camp Hill, PA 17001-0098 Date: July 16, 2002 I.D. No. 21426 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa, I,D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 MARIA TODARO McGumE, an Adult Individual, Plaintiff V. ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, ][NC., a Pennsylvania Corporation trading as ELITE MEDICAL STAI~141NG; and BRIAN J. GAUGHAN, an Adult Individual, Defendants COMPLAINT. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. JURY TRIAL DEMANDED Plaintiff, Mafia Todaro McGuire, through her attorneys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C., files this Complaint against Elite Staffing Services, Inc., formerly known as Capital Area Temporary Services, Inc., a Pennsylvania corporation trad- ing as Elite Medical Staffing, and Brian J. Gaughan, Defendants, and in support thereof alleges as follows: Parties 1. Plaintiff, Mafia Todaro McGuire, is an adult individual and a citizen of the Com- monwealth of Pennsylvania, with an address at 45 Deer Run Road, Etters, Pennsylvania 17319. 2. Defendant Elite Staffing Services, Inc., formerly known as Capital Area Tempo- rary Services, Inc. (hereinafter referred to as either "Elite" or "Employer"), trading as Elite Medical Staffing, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, which has, and at ail relevant times had, a registered address and primary place of business located at 839 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Elite is, and at all relevant times has been, primarily engaged in temporary staff- ing agency and employment agency lines of business in central Pennsylvania. 4. Defendant Brian J. Gaughan is, and at all relevant times was, President of Elite, and is, and was, actively involved in the operations of Elite as a corporate officer, working pri- marily out of his office located at 839 Market Street, Lemoyne, Cumberland County, Pennsyl- vania. 5. Upon information and belief, Defendant Brian J. Gaughan is, and at relative times, including as of October 31, 2001, had been, the sole, or majority, shareholder of Elite. Agreement for Share of Net Profits as Part of Compensation 6. At all relevant times from December, 1999 until April 16, 2002, when she was separated from employment by Elite, Plaintiff was employed by Elite as the Operations Manager of its medical staffing division. 7. Plaintiff had been hired by Elite, through its President, Brian J. Gaughan, pursuant to an agreement worked out between Plaintiff and Elite in November of 1999, certain critical terms of which were memorialized in a confirmatory letter from Elite's President dated Novem- ber 8, 1999, prior to Plaintiff's commencing the job in December of 1999. 8. A true and correct copy of the said November 8, 1999 letter of agreement as exe- cuted by Elite, through its President, which copy includes handwritten notes by Plaintiff added to the document during discussions with Elite's President after the document was received by her, is attached hereto as "Exhibit A," and incorporated herein by reference. 2 9. Beginning in December of 1999, Plaintiff commenced her employment as the Op- erations Manager of Elite's medical division, referred to by the patties as "Elite Medical Staff- ing.'' 10. Plaintiff, prior to being hired by Elite, had extensive experience and expertise in the temporary staffing field, including specifically in the area of temporary medical staffing. 11. When Plaintiff commenced her employment with Elite as Operations Manager, her duties and functions included, among many others, overseeing and attempting to develop and expand Elite's temporary medical staffing service division, "Elite Medical Staffing," which, at the time of commencement of Plaintiff's employment, had a temporary workforce of no more than thirty (30), and which previously had been unable to produce any significant profit. 12. As of late 1999, prior to Plaintiff's joining Elite and over5eeing the running of the Medical Staffing Division, Elite's Medical Staffing Division had total annual sales of well under $1 Million. 13. As of the last full fiscal year that Plaintiff was employed by Elite as its Operations Manager for the medical division, which fiscal year ended October 31, 2001, annual sales for the Elite Medical Staffing Division had grown to well over $5 Million. 14. Under the terms of the said Agreement pursuant to which Plaintiff was hired, Plaintiff was to receive starting compensation which included, among other things, a base salary ranging from $50,000.00 to $118,600.04 per year, depending upon the level of sales, incentives, fringe benefits, and a right to participate in a pementage of the Net Profit of the Elite Medical Staffing Division of the Employer company to the extent that fiscal year sales for the Division surpassed the $5 Million mark. tober. 15. The fiscal year for the Employer at ail relevant times ended on the 31st day of Oc- 16. Pursuant to the terms of the said Agreement under which Plaintiff was hired, when the $5 Million of divisional saies trigger-point was met for a given fiscal year, Plaintiff's base saiary was to be increased to $118,600.04, and Plaintiff was to be paid an additionai bonus equai to five (5%) percent of the Net Profits of the Division, which bonus was referred to by the Parties as the "Bottom Line Bonus." 17. In this regard, the said November 8, 1999 Letter-Agreement summarizing the terms of Plaintiff's engagement by the Employer that is attached hereto as "Exhibit A" states, in pertinent part, as follows: "Above $5,000,000.00 in saies mark, you will receive the base salary of $118,600.04 plus you will receive 5% of the bottom line. The bottom line bonus will be paid out either monthly or quarterly which will be discussed and set up at the time we hit the $5,000,000.00 goai." 18. In connection with agreeing to take the position with Elite commencing in De- cember, 1999, Plaintiff was aiso promised by Elite, through its President, Brian J. Gaughan, that Plaintiff would have a right to buy the Medical Staffing Division in accordance with a formula outlined by Elite's President. Improper Underpayment of Bottom Line Bonus Compensation for 2001 19. With respect to the Employer's fiscai year ending October 31, 2001, the Elite Medicai Division saies exceeded the $5 Million mark. 20. Upon information and belief, saies for Elite Medicai Division were approximately $5.3 Million, or more, for the 2001 fiscai year ending October 31, 2001. 4 21. Pursuant to the Employment Agreement, Plaintiff was entitled to five (5%) per- cent of the net profits from the Medical Staffing Division for the fiscal year ending October 31, 2001. 22. Plaintiff believes, based on her intimate familiarity at the time with the fiscal re- cords, receipts, and legitimate business costs and expenses for the Medical Staffing Division, that the net profit for the Division was conservatively between $1 Million and $1.5 Million, and pos- sibly more, for fiscal year 2001, taking into account all reasonable expenses for the year alloc- able to the Elite Medical Staffing Division. 23. Based on an actual legitimate net profit for the Elite Medical Staffing Division of between at least $1 Million and $1.5 Million, Plaintiff was entitled, as part of her earned com- pensation, to an additional Bottom Line Bonus of at least $50,000.00 to $75,000.00. 24. Defendant Employer, through its President and major shareholder, Defendant Brian J. Gaughan, in or about December of 2001, following the close of the 2001 fiscal year, ini- tially misrepresented to Plaintiff that the sales for the Medical Division were under $5 Million for the year, and initially claimed that Plaintiff was, therefore, not entitled to the increased base salary and Bottom Line Bonus. 25. When Plaintiff immediately responded to this representation of Defendant's President by indicating that she knew he was lying and that she already had gone over the books, was very familiar from her position as Operations Manager with all of the expenses and the op- erations for the year in question, and knew that the sales were well in excess of $5 Million for the Division, Employer's President, Brian J. Gaughan, then admitted that the sales were, in fact, over $5 Million, and that Plaintiff was entitled to a Bottom Line Bonus and increased base salary. 26. Nevertheless, Employer, through its President, thereafter claimed that the amount of the net profits for the Medical Division was only about $70,000.00. 27. Plaintiff disputed the claims of the Employer, through its President and owner, that the net profits for the Division were only $70,000.00, and Plaintiff demanded that Defendant provide a meaningful explanation and show the expenses taken into account with actual corpo- rate records and books. 28. Employer and its President immediately thereafter restricted Plaintiff's access to financial records and books relating to the Elite Medical Staffing Division. 29. Despite Plaintiff's protests, Defendants have refused to acknowledge that the ac- tual net profits were in excess of $70,000.00, and thus far have only paid to Plaintiff a meager $3,600.00 with respect to the 2001 Bottom Line Bonus. That payment was made in or about De- cember, 2001. 30. Consistent with the Agreement, however, Plaintiff's base salary for fiscal year 2001 was increased to $118,600.04. 31. Although Plaintiff is able to roughly estimate, based on her knowledge of the op- erations, revenues and legitimate expenses of the Division, the approximate range of net profits and Bottom Line Bonus due, the exact amount of net profit and bonus cannot be liquidated by Plaintiff without again having full access to Employer's fiscal books and records and/or the benefit of a court-ordered accounting. 32. Defendant Employer has not paid to Plaintiff any additional portion of the Bottom Line Bonus earned by Plaintiff for the fiscal year ending October 31, 2001, beyond the mere $3,600.00 payment based on the misrepresentation of a $70,000.00 net profit. 6 33. Defendants knew, or had reason to know, that the said representation to Plaintiff that the net profit for the Division was only $70,000.00, was not true. 34. Despite Plaintiff's consistent good performance, Defendants terminated her em- ployment effective April 16, 2002, and still have never paid any additional amount regarding the Bottom Line Bonus for fiscal year 2001. 35. The termination of Plaintiff's employment by Elite which, among other things, precluded her ability to ultimately obtain an ownership interest in the company, was done in bad faith. 36. The amount claimed in this action exceeds the jurisdictional amount requiring ar- bitration referral by Local Rule. COUNT I (Claim for Breach of Contract Against Defendant Elite Staffing Services, Inc.) 37. reference. 38. The allegations set forth in Paragraphs 1 through 36 are hereby incorporated by The actions of Defendant Employer in failing or refusing to pay the full amount of the Bottom Line Bonus compensation earned and due for fiscal year 2001 constitutes a wrongful violation of the contract between Plaintiff and Employer. 39. In addition, the termination of Plaintiff's employment was wrongful and in viola- tion of Defendant Employer's implied obligations under the Agreement to act in good faith. 40. Defendant Employer's said breaches of the Employment Agreement have caused serious injuries and losses to Plaintiff, including but not limited to the deprivation of said princi- pal amount of the Bottom Line Bonus shortfall, which is in the range of at least $46,500.00 to 7 $71,500.00, and possibly more, but which cannot be specifically liquidated without detailed in- formation in the exclusive possession of Employer, and the value of the lost opportunity to ulti- mately obtain an ownership interest in the business. WHEREFORE, Plaintiff respectfully requests that this Court: a. Enter judgment in favor of Plaintiff and against Defendant Elite for the amount of the underpayment of compensation, together with costs and interest, and for all losses and damages determined to have been sustained by Plaintiff as a result of the Em- ployer's broaches described herein; and b. Order such other and further relief to Plaintiff as this Court deems equita- ble, together with the costs of this action. COUNT II (Pennsylvania Wage Payment and Collection Law Statutory Claim Against Elite Staffing Services, Inc.) 41. reference. 42. The allegations set forth in Paragraphs 1 through 40 are hereby incorporated by Plaintiff was, at all relevant times prior to her said termination in April of 2002 by Elite had been, an employee of Elite. 43. Defendant Elite was, at all times relevant hereto, an "employer" vis a vis Plaintiff within the meaning of the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §260.2a. 44. The said Bottom Line Bonus due to Plaintiff for fiscal year 2001 by the Defendant Employer constitutes wages due under the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §260.2a, and the said actions of Defendant Employer in underpaying that compensation constitute a violation of the Pennsylvania Wage Payment and Collection Law. 45. Pursuant to 43 Pa. Cons. Stat. Ann. §260.10, in addition to being entitled to the principal amount of the said underpaid compensation for fiscal year 2001, and interest, Plaintiff is entitled to liquidated damages in an amount equal to twenty-five (25%) percent of the com- pensation underpayment. 46. In accordance with 43 Pa. Cons. Stat. Ann. §260.9a(f), owing to Defendants' ac- tions, Plaintiff is entitled to statutory attorneys' fees and costs associated with this action. WHEREFORE, Plaintiff respectfully requests that this Court: a. Enter judgment in her favor and against Defendant Elite in the full princi- pal amount of the underpayment of the 2001 Bottom Line Bonus determined from the Defendant Employer's books and records, plus interest and statutory liquidated damages of twenty-five (25%) percent of the compensation due, or $500.00, whichever is greater, plus statutory attorneys' fees and costs; and b. Order such other and further relief to Plaintiff as this Court deems equita- ble. 9 47. reference. 48. COUNT III (Pennsylvania Wage Payment and Collection Law Statutory Claim Against Defendant Brian J. Gaughan) The allegations set forth in Paragraphs 1 through 46 are hereby incorporated by Defendant Brian J. Gaughan at relevant times was a corporate officer directly and actively involved in the operation of the Employer business, including in the events leading up to the above-captioned lawsuit. 49. Defendant Brian J. Gaughan, as an active corporate officer of the Employer, is in- dividually, for the purposes of the Pennsylvania Wage Payment and Collection Law, an "em- ployer'' as defined in 43 Pa. Cons. Stat. Ann. §260.2a, and is personally liable for unpaid com- pensation due to an employee. WHEREFORE, Plaintiff respectfully requests that this Court: a. Enter judgment in her favor and against Defendant Brian J. Gaughan in the full principal amount of the underpayment of the 2001 Bottom Line Bonus deter- mined from the Defendant Employer's books and records, plus interest and statutory liq- uidated damages of twenty-five (25%) percent of the compensation due, or $500.00, whichever is greater, plus statutory attorneys' fees and costs; and b. Order such other and further relief as this Court deems equitable. 10 50. reference. 51. COUNT IV (Claim for Fraud Against Defendant Elite Staffing Services, Inc. and Defendant Brian J. Oaughan) The allegations set forth in Paragraphs 1 through 49 are hereby incorporated by Upon information and belief, it is averred that Defendant Brian J. Gaughan, on behalf of and in an attempt to directly and unjustly benefit and enrich himself, and on behalf of and in an attempt to unjustly benefit and enrich his company, Defendant Elite, all to Plaintiff's detriment, intentionally manipulated and misrepresented the amount of net profits for the Elite Medical Staffing Division for fiscal year 2001, upon which Plaintiff's compensation was to be computed. 52. As a result of the Defendants' fraudulent manipulation of the calculation of net profits and Plaintiff's Bottom Line Bonus, Plaintiff has suffered, and continues to suffer, injury and losses. WH~EREFORE, Plaintiff respectfully requests that this Court enter Judgment: a. In her favor and against Defendants, jointly and severally, for all losses, including but not limited to the amount of the underpayment of compensation, plus inter- est; b. C. For punitive damages; and For such other and further relief to Plaintiff as this Court deems equitable, together with reasonable attorneys' fees and costs. 11 COUNT V (Claim for Accounting Against Elite Staffing Services, Inc.) 53. reference. 54. The allegations set forth in Paragraphs 1 through 52 are hereby incorporated by Defendant Elite is in possession and control of all of the books and records from which the said net profits for the Elite Medical Staffing Division for fiscal year 2001 may be computed with specificity. WHEREFORE, Plaintiff respectfully requests that this Court: a. Grant to Plaintiff equitable relief in the form of an accounting by Defen- dant Elite Staffing Services, Inc., and order that there be paid to Plaintiff by Defendant Elite an amount equal to five (5%) percent of the net profits found by said accounting to be legitimately allocable to the 2001 fiscal year and to the Medical Staffing Division; and b. Order such other and further relief as this Court deems equitable. Respectfully submitted, JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: May 23, 2002 Byj~ J~r'~ /~dVrES A. DIAMOND (~Pa. LD. No. 43902 Attorneys for Plaintiff 12 EXHIBIT A Matin Tocinto- Mct.,uire 45 Dee~ Run Road Etters, PA 1731 ~ November 8~ 1999 Dent This will confirm our offer and )'our naecptnnee of employmen~ with Capital Area Temporn~ Sct-,.iccs, Elite MedicaJ Ste,t~.nS. The.followin~ details our a~ement. Operations Nlannger, Medical Division $50,000.00 per Year plus inccntiv¢ Benefits oflr.,r s~tisfncto~, completion of 90 day probationary period; Bonus Progrnr~ ' - SifllJIc ¢',,vcrase no c~t - dependent covemg~ aYnilable at employees expense. Holiday Pay - $ Per Year. Sick Pay - (rmt mote t~m 6 pe~ year) Vne~tiot~ Pay - On~ ~ a.~e~ one y~, Two weeks nf~r tw~ yeats, 'l~r~ weeks ~ five yem~ 401K ~dler one yent of servlce. ~hort Term Di~bility ~ one year of ~rvice. - M~,~tnl I Ica~ ]~s 4 days a year, B,nhd~y ,~ff wi, Pay. ~ L~-~ lnc~miv~ ~tn~ur~. (see nttnohrnent) Company C~r __ AS dl,scus~d. I have enclosed an atlachment which explal~-.s the ~ncemllive program. Maria, we are cxtre~o]y excited about ~ assets you bring to Capital Area T~poraty S~viccs,. f~lil~. ~.~t~die~! Staling In~.. Weicomeabonrd! Sincerely, President The followie8 .utJines the prol~am which is based ~ ~ ~ M~ oF~ ~lte ~ $,).oo).r,)~.O0 $974,0(x).00 n, &' ~ nurobe~ ~,r~ ~ On a ~ numbeF ofslaff~d nlm Cel'~nM ..,~1.~, ~ ~th that s~aff. Thc re,tuber ofst~ra~d sa~afiea mid bo~.to ImYfit of ~c c~m~ny. ~ o~ 1~' ~ ~ of~Jl wbk~~, will sky[~k~ ~ ~ ~w, My ~ w~ ~ to r~ a 1~] ~ we would b~ happ,,, to 80 over thes~ numbers wilh you alter you have had time to digest th~m. VERIFICATION I, MAR~ TODARO McGum~, hereby verify that the statements contained in the foregoing Complaint are tree and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Dated: ..~'~'/¢ ,2002 MARIA TODARO McGUIRE SHERIFF'S RETURN - REGULAR CASE NO: 2002-02575 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCGUIRE MARIA TODARO VS ELITE STAFFING SERVICES INC ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ELITE STAFFING SERVICES INC FKA CAPITAL AREA TEMP SERVICES the DEFENDANT , at 0900:00 HOURS, at 839 MARKET STREET on the 30th day of May , 2002 LEMOYNE, PA 17043 by handing to SONDRA CLARKE, MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.04 Affidavit .00 Surcharge 10.00 .00 39.04 Sworn and Subscribed to before me this /~ ~ day of / ~othonotary ' So Answers: R. Thomas Kline 05/31/2002 JOHNSTON & DIAMOND Deputy Sheriff SHERIFF'S RETURN 'CASE NO: 2002-02575 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCGUIRE MARIA TODARO VS ELITE STAFFING SERVICES INC - REGULAR ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GAUGHAN BRIAN J the DEFENDANT , at 0900:00 HOURS, at 839 MARKET STREET LEMOYNE, PA 17043 on the 30th day of May , 2002 by handing to SONDRA CLARKE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /D ~ day of D. ' ' Prothonotary So Answers: R. Thomas Kline 05/31/2002 JOHNSTON & DIAMOND ) Depuny Sheriff MARIA TODARO McGUIRE, an Adult Individual, Plaintiff ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation trading as ELITE MEDICAL STAFFING, and BRIAN J. GAUGHAN, an Adult Individual, Defendants NOTICE TO PLEAD TO: Maria Todaro McGuire c/o James A. Diamond, Esq. Johnston & Diamond, P.C. Suite 100, 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 You are hereby notified to file a written response to the a Objections of the Defendants within twenty (20) days from service heret may be entered against you. Date: June 19, 2002 IN THE COURT OF COMMON PLEAS, CUMBERLAND cOUNTY, PA NO. 02-2575 CIVIL TERM Phili~~~ I.D. # 21426 Thomas A. Capper I.D. # 75020 BALL, MURREN & CON] 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Defendants tached Preliminary .f, or a default judgmem 4ELL MARIA TODARO McGUIRE, an Adult Individual, Plaintiff ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA : TEMPORARY SERVICES, INC., a : Pennsylvania Corporation trading : as ELITE MEDICAL STAFFING, : and BRIAN J. GAUGHAN, an Adult : Individual, : Defendants : IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA NO. 02-2575 CIVIL TERM PRELIMINARY OBJECTIONS OF DEFENDA TO PLAINTIFF'S COMPLAINT AND NOW, this 19th day of June, 2002, come Defendants El Inc., and Brian J. Gaughan, to file Preliminary Objections, in the nat~ dismiss for legal insufficiency of a pleading (demurrer), and in the m strike, pursuant to Pa. R. Civ. P. 1028(a), in the above captioned mat hereinafter set forth: I. Motion to Dismiss Count IV (Claim for Fraud Against DE Staffing Services, Inc. and Defendant Brian J. Gaughan) i Insufficiency of a Pleading (demurrer). 1. Plaintiff commenced this action by filing a Complaint on Ma of the Complaint is attached as Exhibit A. 2. In the Complaint under Count IV, Plaintiff alleges that she su to suffer damages because of Defendants' allegedly fraudulen of Exhibit A. ~ITS [te Staffing Services, tre of a motion to .ture of a motion to ter for the reasons fendant Elite ~or Legal 28, 2002. A copy ffered and continues acts. See ¶¶ 51-52 The Complaint, in Count IV thereof, attempts to set forth a cause of action under fraud. The elements of an action for fraud consist of: (a) a misrepresentation; (b) a fraudulent utterance thereof; (c) an intention by the maker that the recipient will thereby b: induced to act; (d) justifiable reliance by the recipient upon the misrepresen! ation; and (e) damage to the recipient as the proximate result. Pittsburgh Live, Inc. v. Servov, 419 Pa. Super. Ct. 423,615 ,~ (1992)(citing Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 451,454 (1971)). Each of the elements must be proved by cl~ evidence. Pittsburgh Live, Inc., 615 A.2d at 441 (citing Gerfi~ Smelting & Refining Co., Inc., 374 Pa. 66, 67, 97 A.2d 71, 72 Plaintiff alleges that Defendant Gaughan "intentionally manipula! misrepresented the amount of the net profits for the Elite Staffing year 2001, upon which Plaintiffs compensation was to be compul Exhibit A. The Complaint does not state that Plaintiff justifiably relied upon Defendant Gaughan's alleged misrepresentation. Further, the Complaint does not aver that this alleged misrepresen ration caused Plaintiff to act in any manner that was detrimental to her. Rather, the so-called misrepresentation is limited to the alleged m calculation of the net profits. There is no avei-ii~ent that Plaintiffr misrepresentation or that she performed any act in response to the misrepresentation that would have caused her harm. ..2d 438, 441 280, 285, 285 A.2d ~'ar and convincing ~ v. Colonial (1953)). ed and Division for fiscal ed." See ¶ 51 of nipulation of the ~lied on this alleged alleged 14. 15. 9. The Complaint fails to allege one of the required elements of a fraud claim -- the justifiable reliance by the recipient upon the misrepresentation. 10. Since each of the elements of a fraud claim must be proved by clbar and convincing evidence and since Plaintiff has failed to set forth one of the requ ired elements, Plaintiff will be unable to recover under this cause of action. WHEREFORE, Defendants respectfully request that this Ho~ orable Court enter an Order dismissing Count IV of the Complaint in its entirety. II. Alternative Motion to Strike Demand for Attorneys' Fees and Costs in Count IV (Claim for Fraud Against Defendant Elite Staff ng Services, Inc. and Defendant Brian J. Gaughan). 11. Objecting Defendants incorporate by reference the averments of 10 above, as if set forth herein at length. 12. Plaintiff in her claim for relief under Count IV requests, in part, 'easonable attorneys' fees and costs. 13. It is well established that a litigant is responsible for her own col nsei fees absent an agreement by the parties or some other established exception. Pi,~sburgh Live, Inc. v. Servov, 419 Pa. Super. Ct. 423,615 A.2d 438, 442 (1992) (cit:ng Shanks v. Alderson, 399 Pa. Super. Ct. 485, 582 A.2d 883, 885 (1990) allo,:aturden., 528 Pa. 638, 598 A.2d 994 (1991). There is no established exception which permits recovery of atto~ heys' fees in an action for fraud. Id. Since there is no established exception permitting recovery of att<.rneys' fees and since Plaintiff has failed to set forth any agreement under which ,, ae would be entitled to such fees, Plaintiff" claim for relief should be stricken 3 ?aragraph 1 through WHEREFORE, Defendants alternatively request that this Honorable Court enter an Order striking anY reference to attorneys' fees and costs in Count P4 of the Complaint with prejudice. Dated: June 19, 2002 Respectfully ~ubmitted, Philip J. Mtr Attorney I.D Thomas A. I Attomey I.E Ball, Mm're] 2303 Marke Camp Hill, (717) 2324 Attorneys f Ien · # 21426 ;apper · # 75020 & Connell Street DA 17011 731 . Defendants VERIFICATION I hereby verify that the averments made in this plea~ing, are true upon my personal knowledge or information and belief. I understand that any false statements herein are made subject to the penalties of 8 Pa. C.S.A..§4S04, relating to Unsworn Falsification to Authorities Date: ,June lS, 2002 han - CERTIF/CATE OF SERVICE I, Philip $. Murren, Esq., hereby certify that I placed a true and c rrect copy of the foregoing Preliminary Objections to Plaintiffs Complaint in the U.S. M~ prepaid, this 19t~ day of June to: 1, first-class, postage2002, James A. Diamond, Esq. Johnston & Diamond, P.C. Suite 100, 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 Date: June 19, 2002 'lip~. Murren ~ Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 MARIA TODARO McGuIRE, an Adult Individual, Plaintiff V. ELITE S TAI~HNG SERVICES, INC., fmmerly known as CAvrrnL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation trading as ELrr~ MEDICAL STAI~'P1NG; and BRIAN J. GAUGHAN, an Adult Individual, Defendants NOTICE IN TIlE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2575 - Civil Term JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief re- quested 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 TEl F. PHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET I.EGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 M~RI~ TODARO McGUIRE, an Adult Individual, Plaintiff V. ELl're STAHqNG SERVICES, INC., formerly known as CAPrrAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation trading as ELrr~ MEDICAL STAFFING; and BRIAN J. G^uoI4_~24, an Adult Individual, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2575 - Civil Term JURY TRIAL DEMANDED AMENDED COMPLAINT Plaintiff, Mafia Todaro McGuire, through her attomeys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C., files this Amended Complaint against Elite Staffing Services, Inc., formerly known as Capital Area Temporary Services, Inc., a Pennsylvania corpo- ration trading as Elite Medical Staffing, and Brian J. Gaughan, Defendants, and in support thereof alleges as follows: Parties 1. Plaintiff, Mafia Todaro McGuire, is an adult individual and a citizen of the Com- monwealth of Pennsylvania, with an address at 45 Deer Run Road, Etters, Pennsylvania 17319. 2. Defendant Elite Staffing Services, Inc., formerly known as Capital Area Temporary Services, Inc. (hereinafter referred to as either "Elite" or "Employer"), trading as Elite Medical Staffing, is a corporation organized and existing under the laws of the Commonwealth of Penn- sylvania, which has, and at ail relevant times had, a registered address and primary place of busi- ness located at 839 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Elite is, and at all relevant times has been, primarily engaged in temporary staffing agency and employment agency lines of business in central Pennsylvania. 4. Defendant Brian J. Gaughan is, and at ail relevant times was, President of Elite, and is, and was, actively involved in the operations of Elite as a corporate officer, working primarily out of his office located at 839 Market Street, Lemoyne, Cumberland County, Pennsylvania. 5. Upon information and belief, Defendant Brian J. Gaughan is, and at relative times, including as of October 31, 2001, had been, the sole, or majority, shareholder of Elite. Agreement for Share of Net Profits as Part of Compensation 6. At ail relevant times from December, 1999 until April 16, 2002, when she was separated from employment by Elite, Plaintiff was employed by Elite as the Operations Manager of its medical staffing division. 7. Plaintiff had been hired by Elite, through its President, Brian J. Gaughan, pursuant to an agreement worked out between Plaintiff and Elite in November of 1999, certain critical tea-ms of which were memorialized in a confim~atory letter from Elite's President dated Novem- ber 8, 1999, prior to Plaintiff's commencing the job in December of 1999. 8. A true and correct copy of the said November 8, 1999 letter of agreement as exe- cuted by Elite, through its President, which copy includes handwritten notes by Plaintiff added to the document during discussions with Elite's President after the document was received by her, is attached hereto as "Exhibit A," and incorporated herein by reference. 9. Beginning in December of 1999, Plaintiff commenced her employment as the Op- erations Manager of Elite's medical division, referred to by the parties as "Elite Medical Staff- ing.'' 10. Plaintiff, prior to being hired by Elite, had extensive experience and expertise in the temporary staffing field, including specifically in the area of temporary medical staffing. 11. When Plaintiff commenced her employment with Elite as Operations Manager, her duties and functions included, among many others, overseeing and attempting to develop and expand Elite's temporary medical staffing service division, "Elite Medical Staffing," which, at the time of commencement of Plaintiff's employment, had a temporary workforce of no more than thirty (30), and which previously had been unable to produce any significant profit. 12. As of late 1999, prior to Plaintiff's joining Elite and overseeing the running of the Medical Staffing Division, Elite's Medical Staffing Division had total annual sales of well under $1 Million. 13. As of the last full fiscal year that Plaintiff was employed by Elite as its Operations Manager for the medical division, which fiscal year ended October 31, 2001, annual sales for the Elite Medical Staffing Division had grown to well over $5 Million. 14. Under the terms of the said Agreement pursuant to which Plaintiff was hired, Plaintiff was to receive starting compensation which included, among other things, a base salary ranging from $50,000.00 to $118,600.04 per year, depending upon the level of sales, incentives, fringe benefits, and a right to participate in a percentage of the Net Profit of the Elite Medical Staffing Division of the Employer company to the extent that fiscal year sales for the Division surpassed the $5 Million mark. tober. 15. The fiscal year for the Employer at all relevant times ended on the 31st day of Oc- 16. Pursuant to the terms of the said Agreement under which Plaintiff was hired, when the $5 Million of divisional sales trigger-point was met for a given fiscal year, Plaintiff's base salary was to be increased to $118,600.04, and Plaintiff was to be paid an additional bonus equal to five (5%) percent of the Net Profits of the Division, which bonus was referred to by the Parties as the "Bottom Line Bonus." 17. In this regard, the said November 8, 1999 Letter-Agreement summarizing the terms of Plaintiff's engagement by the Employer that is attached hereto as "Exhibit A" states, in pertinent part, as follows: "Above $5,000,000.00 in sales mark, you will receive the base sal- ary of $118,600.04 plus you will receive 5% of the bottom line. The bot- tom line bonus will be paid out either monthly or quarterly which will be discussed and set up at the time we hit the $5,000,000.00 goal." 18. In connection with agreeing to take the position with Elite commencing in De- cember, 1999, Plaintiff was also promised by Elite, through its President, Brian J. Gaughan, that Plaintiff would have a right to buy the Medical Staffing Division in accordance with a fommla outlined by Elite's President. Improper Underpayment of Bottom Line Bonus Compensation for 2001 19. With respect to the Employer's fiscal year ending October 31, 2001, the Elite Medical Division sales exceeded the $5 Million mark. 20. Upon information and belief, sales for Elite Medical Division were approximately $5.3 Million, or more, for the 2001 fiscal year ending October 31, 2001. 21. Pursuant to the Employment Agreement, Plaintiff was entitled to five (5%) per- cent of the net profits from the Medical Staffing Division for the fiscal year ending October 31, 2001. 22. Plaintiff believes, based on her intimate familiarity at the time with the fiscal re- cords, receipts, and legitimate business costs and expenses for the Medical Staffing Division, that the net profit for the Division was conservatively between $1 Million and $1.5 Million, and pos- sibly more, for fiscal year 2001, taking into account all reasonable expenses for the year allocable to the Elite Medical Staffing Division. 23. Based on an actual legitimate net profit for the Elite Medical Staffing Division of between at least $1 Million and $1.5 Million, Plaintiff was entitled, as part of her earned com- pensation, to an additional Bottom Line Bonus of at least $50,000.00 to $75,000.00. 24. Defendant Employer, through its President and major shareholder, Defendant Brian J. Gaughan, in or about December of 2001, following the close of the 2001 fiscal year, ini- tially misrepresented to Plaintiff that the sales for the Medical Division were under $5 Million for the year, and initially claimed that Plaintiff was, therefore, not entitled to the increased base salary and Bottom Line Bonus. 25. When Plaintiff immediately responded to this representation of Defendant's Presi- dent by indicating that she knew he was lying and that she already had gone over the books, was very familiar from her position as Operations Manager with all of the expenses and the op- erations for the year in question, and knew that the sales were well in excess of $5 Million for the Division, Employer's President, Brian J. Gaughan, then admitted that the sales were, in fact, over $5 Million, and that Plaintiff was entitled to a Bottom Line Bonus and increased base salary. 26. Nevertheless, Employer, through its President, thereafter claimed that the amount of the net profits for the Medical Division was only about $70,000.00. 27. Plaintiff disputed the claims of the Employer, through its President and owner, that the net profits for the Division were only $70,000.00, and Plaintiff demanded that Defendant provide a meaningful explanation and show the expenses taken into account with actual corpo- rate records and books. 28. Employer and its President immediately thereafter restricted Plaintiff's access to financial records and books relating to the Elite Medical Staffing Division. 29. Despite Plaintiff's protests, Defendants have refused to acknowledge that the ac- tual net profits were in excess of $70,000.00, and thus far have only paid to Plaintiff a meager $3,600.00 with respect to the 2001 Bottom Line Bonus. That payment was made in or about De- cember, 2001. 30. Upon information and belief, it is averred that Defendant Brian J. Gaughan, on behalf of and in an attempt to directly and unjustly benefit and enrich himself, and on behalf of and in an attempt to unjustly benefit and enrich his company, Defendant Elite, all to Plaintiff's detriment, intentionally manipulated and misrepresented the amount of net profits for the Elite Medical Staffing Division for fiscal year 2001, upon which Plaintiff's compensation was to be computed. 31. Consistent with the Agreement, however, Plaintiff's base salary for fiscal year 2001 was increased to $118,600.04. 32. Although Plaintiff is able to roughly estimate, based on her knowledge of the op- erations, revenues and legitimate expenses of the Division, the approximate range of net profits and Bottom Line Bonus due, the exact amount of net profit and bonus cannot be liquidated by Plaintiff without again having full access to Employer's fiscal books and records and/or the bene- fit of a court-ordered accounting. 33. Defendant Employer has not paid to Plaintiff any additional portion of the Bottom Line Bonus earned by Plaintiff for the fiscal year ending October 31, 2001, beyond the mere $3,600.00 payment based on the misrepresentation of a $70,000.00 net profit. 34. Defendants knew, or had mason to know, that the said representation to Plaintiff that the net profit for the Division was only $70,000.00, was not tree. 35. Despite Plaintiff's consistent good performance, Defendants terminated her em- ployment effective April 16, 2002, and still have never paid any additional amount regarding the Bottom Line Bonus for fiscal year 2001. 36. The termination of Plaintiff's employment by Elite which, among other things, precluded her ability to ultimately obtain an ownership interest in the company, was done in bad faith. 37. The amount claimed in this action exceeds the jurisdictional amount requiring ar- bitration referral by Local Rule. COUNT I (Claim for Breach of Contract Against Defendant Elite Staffing Services, Inc.) 38. The allegations set forth in Paragraphs 1 through 37 are hereby incorporated by reference. 39. The actions of Defendant Employer in failing or refusing to pay the full amount of the Bottom Line Bonus compensation earned and due for fiscal year 2001 constitutes a wrongful violation of the contract between Plaintiff and Employer. 40. In addition, the tex~rfination of Plaintiff's employment was wrongful and in viola- tion of Defendant Employer's implied obligations under the Agreement to act in good faith. 41. Defendant Employer's said breaches of the Employment Agreement have caused serious injuries and losses to Plaintiff, including but not limited to the deprivation of said princi- pal amount of the Bottom Line Bonus shortfall, which is in the range of at least $46,500.00 to $71,500.00, and possibly more, but which cannot be specifically liquidated without detailed in- foriiiation in the exclusive possession of Employer, and the value of the lost opportunity to ulti- mately obtain an ownership interest in the business. WHEREFORE, Plaintiff respectfully requests that this Court: a. Enter judgment in favor of Plaintiff and against Defendant Elite for the amount of the underpayment of compensation, together with costs and interest, and for all losses and damages dete~tnined to have been sustained by Plaintiff as a result of the Em- ployer's breaches described herein; and b. Order such other and further relief to Plaintiff as this Court deems equita- ble, together with the costs of this action. 42 reference. 43. COUNT II (Pennsylvania Wage Payment and Collection Law Statutory Claim Against Elite Staffing Services, Inc.) The allegations set forth in Paragraphs 1 through 41 are hereby incorporated by Plaintiff was, at all relevant times prior to her said tet-mination in April of 2002 by Elite had been, an employee of Elite. 44. Defendant Elite was, at ail times relevant hereto, an "employer" vis a vis Plaintiff within the meaning of the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §260.2a. 45. The said Bottom Line Bonus due to Plaintiff for fiscal year 2001 by the Defendant Employer constitutes wages due under the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §260.2a, and the said actions of Defendant Employer in underpaying that compensation constitute a violation of the Pennsylvania Wage Payment and Collection Law. 46. Pursuant to 43 Pa. Cons. Stat. Ann. §260.10, in addition to being entitled to the principal amount of the said underpaid compensation for fiscal year 2001, and interest, Plaintiff is entitled to liquidated damages in an amount equal to twenty-five (25%) percent of the com- pensation underpayment. 47. In accordance with 43 Pa. Cons. Stat. Ann. §260.9a(f), owing to Defendants' ac- tions, Plaintiff is entitled to statutory attorneys' fees and costs associated with this action. WHEREFORE, Plaintiff respectfully requests that this Court: a. Enter judgment in her favor and against Defendant Elite in the full princi- pal amount of the underpayment of the 2001 Bottom Line Bonus determined from the De- fendant Employer's books and records, plus interest and statutory liquidated damages of twenty-five (25%) percent of the compensation due, or $500.00, whichever is greater, plus statutory attorneys' fees and costs; and b. Order such other and further relief to Plaintiff as this Court deems equita- ble. 48. reference. 49. COUNT III (Pennsylvania Wage Payment and Collection Law Statutory Claim Against Defendant Brian J. Gaughan) The allegations set forth in Paragraphs 1 through 47 are hereby incorporated by Defendant Brian J. Gaughan at relevant times was a corporate officer directly and actively involved in the operation of the Employer business, including in the events leading up to the above-captioned lawsuit. 50. Defendant Brian J. Gaughan, as an active corporate officer of the Employer, is in- dividually, for the purposes of the Pennsylvania Wage Payment and Collection Law, an "em- ployer'' as defined in 43 Pa. Cons. Stat. Ann. §260.2a, and is personally liable for unpaid com- pensation due to an employee. 10 WHEREFORE, Plaintiff respectfully requests that this Court: a. Enter judgment in her favor and against Defendant Brian J. Gaughan in the full principal amount of the underpayment of the 2001 Bottom Line Bonus determined from the Defendant Employer's books and records, plus interest and statutory liquidated damages of twenty-five (25%) percent of the compensation due, or $500.00, whichever is greater, plus statutory attorneys' fees and costs; and b. Order such other and further relief as this Court deems equitable. 51. reference. 52. COUNT IV (Claim for Accounting Against Elite Staffing Services, Inc.) The allegations set forth in Paragraphs 1 through 50 are hereby incorporated by Defendant Elite is in possession and control of ail of the books and records from which the said net profits for the Elite Medicai Staffing Division for fiscal year 2001 may be computed with specificity. WHEREFORE, Plaintiff respectfully requests that this Court: a. Grant to Plaintiff equitable relief in the form of an accounting by Defen- dant Elite Staffing Services, Inc., and order that there be paid to Plaintiff by Defendant Elite an amount equai to five (5%) percent of the net profits found by said accounting to be legitimately ailocable to the 2001 fiscal year and to the Medicai Staffing Division; and 11 b. Order such other and further relief as this Court deems equitable. Dated: June 25, 2002 Respectfully submitted, JOHNSTON & D~dV~OND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Attorneys for Plaintiff 12 EXHIBIT A Maria Todn~o. Mcgu~re 45 Dee~ Run R~ad Ellers, PA I 'K.! 19 ? ~ Mar~ ' This will confirm our offer and yom' nc, c~n~e of emptoymen~ with Capital Area Temporn~ Services, Elite Me, dieal Sta~. Th~.foilowing details out Operations Mana~=, M~dical Division $S0,000~00 pet Year plus.incentive Benefits after sut~sfactory completion of 90 day plobationmT period; Salaried Status. Bonus Program. ~ $i~ltle ('~wetage Heal~ Imaran~ at no cos~ - dependent coveraga available at employees expense. Holiday Pay = $ Per Year. Sick Pay - {not mote than 6 pet year) Vne:~ti,,n Pny o On~ week nfter on~ ylmr, Two weeks a_~er two '~s~ wc~ks a,~et five 401K after one yent of servlce. ~hort'l'crm Disability. ~ one yea~ of service. Mmtnt t leal~ Darts 4 dsys ~ yenr. - Co.mpanv Ca~ ~ AS djscusst, d. ! have enclosed an a~.hmctR which expJaies the Lece~tivc prognu'u. Maria, we.are extremely excited about the astra' you bring to Capitnl Area Temp~tat7 Services. F',lik' Medical Staffing In~.. Wdmme aboard! pna4~t ofthc: e~.mpany. The ol~et .h~' vatisbk would be co~t to the ¢onll)lmy R)r Ibe ~ of'otdJt whk, h will sky[odoR a:l late {~)w, My ~ w0u[tl b~ to n~ a level where we would I~ .~.-I I',~.l'lh--ient without having to utilize the ~ unless there is an emergency situation. WOuld b~ I,aR? ~,~ {{o ovu' rinse uumbam with you att~ you have ~ thue to diSemt VERIFICATION I, MAmA TODARO MCGUmE, hereby verify that the statements contained in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. MARIA TODARO McGUIRE ,2002 CERTIFICATE OF SERVICE I, James A. Diamond, Esquire, hereby certify that I have this date served the foregoing Amended Complaint upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Philip J. Murren, Esquire Ball, Murren & Connell P. O. Box 1108 Harrisburg, PA 17108-1108 (Counsel for Defendants) s A. D~MOND Dated: June 25, 2002 OuP F~la N!_-,~ ]57217 ATTORNEYS ?C61 PT,~ ! NTT FF EPiC M. ~ENHAN, P.C. RY: Eric M. Berman, Es,lnit'~, I.D. 8S~98 BY: Ron Z. Opher, Esquire, i.D. 57507 Wayne= PA 19087 (e!O) 902-053o COURT OF cOUNTY OF JASON ( '}-'")9~'79 PRAECIPE TO ENTER DEFAWLT T) THE PROTFCNiTARY' ~ .1 em~e ant -~r' a defan] t O~htsmeF~t i n faw}r of Plainti ff~ ~ , ,~ , ~,N BANK and a~ainst [)efendant~ JASON C CAPITS fop fa1 ]tt'e to answer oP otherw}se respond to the Cemp}aint - F'i ,'i! A,'t J on . The tZmaplaint was served upon Defendant on OR/'04~?O'<e by th/',-h~r~ff" ' 's Off{ce ~-~ .... r',~., ,,~m'~ 0~. CUMBFRLANI~ Connty, ? u~rtify that written not,ce of the ~ntentiou to fil~ this wa~ mai]ed or delJvePed to the party again:~t whom jud&ment is t: entered after the default ,'-~ccurt'ed an:! et ' =a:-t. t~n ?ays pr'~or .... ,,:. ....... , together with attorneys fees A ........ .~ ,, fOP Our File N,-.. J57227 ATTORNEYS FOR PLAINTIFF ERIC M. BE~MAN, P.C. By: Eric M. Berman, Es,~uire, I.D. E',86ff~8 By: Rcm Z. Opher, Estuire, I.D. 57507 985 Old Eagle School ~oad, Suite 505 Wayne, PA 190.27 (ft~f~) 90? O530 ........................ X COURT OF COMMON PLEAS : CONNTY QF CUHBERLAND DISCOVER BANK c:,/o ERIC H. ~ERt{AN, P.C. : TRIAL DIVJNii}~ 985 Old Easle S:~hoo] Road: Suite Wayne: PA { ?l)S? : No. 02-02572 JASON NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notifle,4 thst a JUDGMENT BY DEFAULT has been entered ~,2air'~s+, ycna in the above proceeding and that enoh>c'ed herewith is a copy ,:~ all the (record) document~ fil~d in su!?or't of the said TF YON HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PT,EASE CAI, L: ERTC M. BEP, MAN, P.C., Attorneys .st. Law. Attention: ~ric M. ~erman, Esquire, or Non Z. Opher, Es.luire, thls telephe~le nnmher I-6{10-9{32 {-}Silo Our File No. 157217 ~'~ATTORNEYS FoR PLAINTIFF ~ ERIc M. BERMAN, P.C. BY: Eric M. Barman, Esquire, I.D. 83698 BY: Ron Z. Opher, Esquire, I.D. 57507 985 OId Eagle School Road, Suite 505 Wayne, PA 19087 (610) 902-0530 \ .... COURT OF COMMON PLEAS ......................................... X COUNTY OF CUMBERLAND DISCOVER BANK c/o ERIC M. BERMAN, P.C. 985 Old Eagle School Road, Wayne, PA 19087 JASON C CAMIS Suite 505 : TRIAL DIVISION CIVIL ACTION : No. 02-02572 NOTICE OF INTENTION TO TAKE DEFAULT JUDGMENT TO: JASON C CAMIS 521 TERRACE DR NEW CUMBERLND, DATE OF NOTICE: PA 17070-1563 IMPORTANT NOTICE You are in default because you ha~e failed to take action required of you in this case. Unles~'~ou act within ten (10) days of the date of this Notice, as set foirth above, a Judgment may be entered against you without_~a Hearin~ and you may lose your property or other important rights. YOU SHOULD TAKE THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU oFEicE FORTH OR FIN OUT LAWYER REFERRAL SERVICE, COUNTY OF CUMBERLAND COUNTY BAR ASSOCIATION Address: 2 LIBERTY AVE., CARLISLE, PA 17013 Telv: ~00-990-9108 LLEVE ESTA DEMANDA A UN ABOGADO INMED~ATEMENTE. NO T~ENE ABOGA 0 SO NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE, COUNTY OF CUMBERLAND BAR ASSOCIATION Address: 2 LIBF~R%TY AVE., CARLISLE, PA 17013 Tel.: 800-990-9108 SPACEJUD-ZF /~.'/~..._~__ ~ ERIC M.~5~AN, P.C. ERIC M. BERMAN, P.C. Attorneys for Plaintiff Attorneys for Plaintiff By: Eric M. Barman, Esquire By: Ron Z. Opher, Esquire Our FJ!e No. ]572!7 ATTORNEYS FOR PLAINTIFF ERIC M. BERMAN, P.C. BY: Eric M. Berman~ Es~2uire? l.l). 5t?~S~' BY: ~on Z. Ophe?, Esqt:i~'e, !.I). 57507 9~'5 Old Eagle School Raod, Suite 505 (F~10) f~0:7'-0530 ..... ¢C,_ ,lEt,. c/'o ERIC M. BERMAN, P.C. : ¢)F~5 Old Eagle o~}%~ol Road, Suite 505 : PA -.a~ne, : JASON ~ ~ ~ ...... AMIo COURT OF COMMON ~=~ ~Ao'- COUNTY OF 3UMBERLAND TRIAL DIVISION CIVIL ACTION 02-02572 CERTIFICATION OF ADDRESSES TO THE PROTHONOTARY: The address of the Plaintiff, Judgment Creditor, Eric M. Berman, ..... p C' ~ 925_ Old Eagle School ~noad', Suite Wayne: PA ~9227. The last known address of the Defendant, Judgment Debtor, 52] TERRACE DR, NEW C;UMBERLNI), PA 17070 Eric M~ Bern]an, P.C. Attorneys for Plaintiff By: Eric M. Berman, Esqui~'e SPACE JUl> Eric M. Berman, t:' 7. Attorneys for DlaJntiff By: IRon Z. File No. 157217 AFFIDAVIT OF NON-MILITARY SERVICE State of Pennsylvania: SS. County of Cumberland Eric M. Bermen, Esq. being duly sworn according to law, deposes and says that he/she (is) (represents) the Plaintiff(s) in the above entitled case; that he/she is authoriz ed to make this affidavit on behalf of the Plaintiff(s): and that the above named Defendant(s) is (are) above 18 years of age; the address of Defendant(s) is: 521 Terrace Dr., New Cumberland, PA 17070 Occupation of Defendant(s) is unknown; and Defendant is not in the Military Service of the United States, nor any State or Territory thereof or its allies as defined in the Soldiers' end the Sailors' Civil Relief Act of 1940 and the amendments thereto. Commonwealth of Pennsylvania County of Cumberland I, Eric M. Berman, Esq. depose end say that the facts set forth in this complaint are ~ue and correct end acknowledge that I am subject to the penalties of 18 P.S. 4904 relating to Unswom Falsification to Authorities Eric M. Be~a~n, Esq. Attorney for the Plaintiff I hereby acknowledge receipt of the following affidavit forms which I understand must be properly completed, notariz ed and presented to the Court at the hearing: __ Medical Affidavit Repair Affidavit Bookkeeper Affidavit Signature So sw/om~efo? me this /~/~day of ~ ,200! Ngfary Public, State of New York No. 02CA6024830 Qualified in Suffolk County Term Expires May 17, 2003 Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 MARIA TODARO McGUmE, an Adult Individual, Plaintiff V. ELITE STAFFING SERVICES, INC., formerly known as CAVITAL AV, EA TEMPORARY SERVICES, INC., a Pennsylvania Corporation trading as ELITE MEDICAL STAFFING; and J. GAUGHAN, an Adult Individual, Defendants IN THE COU~RT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. 02-257:5 - Civil Term JURY TRIAL DEMANDED STIPULATION OF ALL PARTIES FOR AN ORDER DISMISSING CASE, WITH PREJUDICE MARIA TODARO McGUIRE, Plaintiff, through her undersigned counsel, and ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation, and BRIAN J. GAUGHAN, Defendants, through their undersigned counsel, being all of the parties to the above-captioned case, hereby stipulate and agree to the entry of an Order dismissing, with prejudice, the above-captioned case in its entirety, with each party bearing its own costs. For Maria Todaro McGuire, Plaintiff: JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: By Ja(ne]s A. Diamond P~I.D. No. 43902 For Elite Staffing Services, Inc. and Brian J. Gaughan, Defendants: BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Dated: By Thomas A. Capper, Esqffil~ Pa. I.D. No. 75020 ',121602 Attorneys for Defendant: JAMES A, DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Penn- sylvania Corporation, Plaintiff/Counterclaim Defendant V. CHARLA K. BISHOP, an individual, Defendant/Counterclaim Plaintiff IN THE COURT OF COMMON PI.FAS CUMBERLAND COUNTY, PA NO. 3594 o:f 2002 CIVIL ACTION - EQUITY/LAW STIPULATION OF ALL PARTIES FOR AN ORDER DISMISSING CASE, INCLUDING ALL CLAIMS AND COUNTERCLAIMS, WITH PREJUDICE ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPO- RARY SERVICES, INC., a Pennsylvania Corporation, Plaintiff and Counterclaim Defendant, through its undersigned counsel, and CHARLA K. BISHOP, Defendant and Counterclaim Plain- tiff, through her undersigned counsel, being all of the parties to the above-captioned case, hereby stipulate and agree to the entry of an Order dismissing, with prejudice, the above-captioned case in its entirety, including all of its claims and counterclaims, with each party beating its own costs. Dated: For Elite Staffing Services, Inc., Plaintiff and Counterclaim Defendant: B~LL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 (717) 232-873~1 By ~~wr~/-~ ~/t~ Es~~ Thomas A. Capper, Pa. I.D. No. 75020 For Charla K. Bishop, Defendant and Counter- claim Plaintiff: JOHNSTON 8[ DIAMOND, P.C. Suite 100, 150 Coq?orate Center Drive Post Office Box 98 Camp Hill, Pennsy]ivania 17001-0098 (717) 975-5500 Dated: ~na. ies A. Diamond .D. No. 43902 ,JAN 0 a OD3 Attomevs for Plaintiff: JAMF..~ A, DIAMOND~ ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P,C,, Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone:. (717) 975-5500 MMUA TODARO MCGUIP. E, an Adult Individual, Plaintiff IN TI-iB COURT OF COMMON PLEAS, CUM~AND COUNTY, PENNSYLVANIA No. 02-2575 - Civil Term ~T ~ STAFFING $1~VICES, INC., formerly known az CAI'rFAL ARE^ T~MPOlZ~Y SERVES, IN~:., a : Pennsylvania Corporation trading aa : RT~[~ ~VLF. DICAL STAFFING; and BRIAN : L GAUOP. A~, au Adult Individual, : Defendants : JURY TRIAL DEMANDED. ORDER Capital Area Temporary Services, Inc., a Pennsylvania Corporation, and Brian J. Oaughan, De~ndants, being all of thc parties to this ~tion, it is he.by ORDERED AND' AD~UDGF_.D that the above-cap.ned case be, and hercby is, DISMISSED' WITH PREJUDICI~. in its entirety, with each paxiy b.eoring its own costs. BY THE COURT: TRUE COPY FROM RECORD In Testimony v,,'J'lCr(of, I h re'ul;to set my hand