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HomeMy WebLinkAbout02-2752EDWARD A. POMPONIO, Plaintiff MICHAEL J. GENNA a/k/a MICHAEL J. JENNA, Defendant 131 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002- CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 EDWARD A. POMPONIO, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2002- : CWIL ACTION - LAW JURY TRIAL DEMANDED MICHAEL J. GENNA a/leda MICHAEL J. JENNA, Defendant COMPLAINT AND NOW, comes Plaintiff, Edward A. Pomponio, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and makes the following claim and in support thereof, avers as follows: 1. Plaintiff, Edward A. Pomponio, is an adult individual residing at 652B Market Street, Lemoyne, Cumberland County, PA 17043. 2. Defendant, Michael John Genna a/k/a Michael J. Jenna, is an adult individual residing at 609 Ross Avenue, New Cumberland, Cumberland County, PA 17070. 3. At all times pertinent hereto, Defendant did business as Premier Body Accents at the above stated home address. 4. At all times pertinent hereto, Premier Body Accents was in the business of nationwide telephone sales of its line of jewelry. COUNT I - BREACIt OF CONTRACT 5. Paragraphs 1 through 4 hereof are incorporated herein by reference thereto. 6. On or about January, 2001, Plaintiff and Defendant entered into an oral agreement whereby Plaintiff would be employed by Defendant as an independent commissioned salesman of Defendant's line of jewelry. 7. In the aforesaid oral agreement, Defendant promised to pay Plaintiff a twenty (20%) pement commission on sales made by Plaintiff: 8. On or about February 7, 2001, Plaintiff and Defendant entered into a written agreement, embodying their prior oral agreement, and adding a covenant not to compete, a copy of said Agreement is attached hereto and marked as Exhibit "A." 9. A couple of months later Defendant told Plaintiff that Plaintiffwould no longer be an independent contractor; rather Plaintiff would be an employee of Defendant at the same commission. 10. On or about May 17, 2001, Defendant presented Plaintiff with a document understood by Plaintiff to be a statement of company policy and asked Plaintiff to sign it, which Plaintiff did. A copy of said document is attached hereto and marked as Exhibit "B." 11. Despite repeated requests, Defendant has failed and refused, and continues to fail and refuse to provide Plaintiff with the documentation and the arithmetic by which his commissions were calculated. 12. Plaintiff believes, and therefore avers, that the commissions were incorrectly calculated so that Plaintiff received less than he was promised by Defendant. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $25,000.00. COUNT II - TIlE PENNSYLVANIA WAGE PAYMENT AND COI,I,I;,CTION LAW 2001. 13. 14. Paragraphs 1 through 12 hereof are incorporated herein by reference. Plaintiff terminated his employment relationship with Defendant on September 17, 15. Defendant refused to pay Plaintiff for his last week of pay, or account to Plaintiff for any of the remaining commissions. 16. Plaintiff has never received compensation based on commissions for sales made by him as an employee of Defendant prior to September 17, 2001, but collected thereafter. 17. Defendant has failed and refused, and continues to fail and refuse, to provide Plaintiff with detailed records for sales made by Plaintiff prior to September 17, 2001 as a result of which Plaintiff is unable to acc~ately calculate the commissions owed to him by Defendant. 18. By reason of the foregoing, Plaintiffis entitled to liquidate his damages in accordance with The Pennsylvania Wage Payment and Collection Law, and claim is made therefore. 19. As a result of the foregoing, Plaintiffhas been required to incur attorney's fees and claim under The Pennsylvania Wage Payment and Collection Law is made therefore. WHEREFORE, Plaintiff demands judgment against Defendant for an unliquidated amount in excess of $25,000.00 and believed to be in excess of the amount requiring compulsory arbitration, together with interest, liquidated damages, attorney's fees and costs. Date: June 4, 2002 MARTSON DEARDORFF WILLIAMS & OTTO By Thomas J. Willian~squire Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff, Edward A. Pomponio Premier Body Accents Independent Salesperson Agreement This agreement is made and effective Owner/Premier Body Ao~ents, and ~/?/~/ by and between, Mike Genna, (Date) (RecJpJent's Name) Recipient Status It is understood that by accepting a position for sales with Premier Body Accents you will be considered an independant contractor, who shall at the end of the current and any subsequent years in business association with said company receive a 1099 form and be held solely responsible for any taxes due federal, state and local governments. It is ~ understood by recipiant that the independent comractor relationship is wholly voluntary and can be termin,,t,,d at ~ time with or without cause by Premier Body Aceemts and/or the recipient without prior notice. It iS agreed that the recipiant will be compensated at a rate of 20% of sales, 5% of which will be deducted weeldy for the purpose~ of rent, supplie~, leads and phone bills. ARer a period of 6 months from the onset of the recipient's business relationship with Premier a performance evaluation will be provided by the owner, upon which the redpient will be considered for an increased compensation rate. It is understood that an increase is not ~.manteed, and that it will be based solely on the individual sales performance. Confidenfin! Information The owner proposes to disclose certain of his confidential and proprietary infonmtion to recipient. **NOTE: Confidentialinformation shnn include aH customer and prospective customer information, data, materials, products, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted, orally, in writin~ or by other media, to recipient by owner. Confidential information disclosed orally shall be identified as such within five days of disclosure. Nothing herein shall require owner to disclose any informatioa** The Recipient agrees that the confidential information is to be considered ~s such and proprietary to owner end shall hold the same in confidence, shall not use the confidential information other than for the purposes of.business with the owner and shall disclose it only to employees with a specific need to know. Recipient shall not disclose, publish~ or EXHIBIT "A' ' othe~se reveal any confidential information'r~ived from owner to any other party' whatsoever except with the specific prior written authorization of owner. Tl~.e recipient shall not duplicate confidential information furnished in tangible form unless prior express authorization is given. Upon ~e request of the owner, recipient shall return ~11 Ccrafidentia/Inform~6on received in writing or tan~ble forms, including copies, reproductions, or other media containing such Confidential Information within 5 days of tach requests. ~lh~ipieut hiii~ls Non Compete Recipient a~knowiedges that as a condition of this a~reemeflt, in the event oftermin*tion, either voluntary or involuntary, of the business rolation~hlp established in the preceding document, that he/she will not engagi~ in a competitive business for the period of 60 days, nor will he/she contact or solic, i~ any ~ustomer with whom Premier Body Ac~nts had conducted business durin~ hi.q/her assors~io~ This restrictive covenant shall be for a period of 60 day~ Ii'om termin~6on and shall encompass an area within a 100-mile radius Premiet's place of business. By signing, I am stating that I have read, understood, ~nd agreed to the teFms °U~~and shall adhere to the restrictions therein, ' ' Bate) Pr~br Bedy Accmb PREMZER BODY ACCENTS COHPANY POLZCY AGREEHENT SALES TEAM POL/CY A. Monthly Sales Reaulrement~: Salesmen are expected to meet the following requirements for sales volume each month: 1000 phone calls and 1800 minutes on the phone or$16,000 In sales per month. Failure to meet any of these requirements in any given month will result 'in the following: 1. Commission will be given on a sliding scale based on weekly performance (i.e. $0- $3000 at 10%, $3000 to $4000 at 3.2%, and $4000+ at 3.5%). This IncenUve commission will be given until the salesmen completes two consecutive months of sales at the minimum monthly requirements listed above. Salesmen phone bills will be reviewed at the end of each month and performance evaluations are available if requested. 2. If after two months of sliding scale Commission the sales requirements are not met, the salesmen will receive a written warning for performance. If after three months the salesmen may receive a suspension for one week, or employment termination. 3. A 2.S% bonus will be given for any salesman who reaches $6000+ In any week. B. JLe.taJ_CD_EglJ~: Orders will be shipped to any given customer a maximum of two Umes. ]'f on the second shipping attempt the order Is returned, the salesmen will be charged back his/her commission and the cost of one of the shipping charges. C. ~: Approving a company check for a customer Is at the salesmen's discretion. The management places no terms of'good faith" in any given customer. In the event that an order is receive and the customer's check bounces. The salesmen will be responsible for the following:* 1. The cost of the jewelry 2. The commission received on the order 3. The shipping charge 4. Any other expense associated with the retrieval of the lost funds *Jif after paying for the cost of a bounced check, the funds are retrieved, the salesman Is entiUed to a refund for the cost of the Jewelry and the shipping charge. D. Neaatlvltv In the Workolare: Productivity is based in part on our ability to work together. Negative comments or actions toward any other employee will not be tolerated. We are a team, and ridicule or harassment of any kind can compromise performance. Upon any instance of negative behavior, the employee may receive any of the following: a verbal warning, a wdtten warning, suspension, and/or termination, Examples of negativity Include, but are not limited to, the following: Ridicule, harassment (verbal, physical, or sexual), intentionally causing distractions, goofing off, yelling at any co-worker, hanging out instead of working, EXHIBIT "B" E. J~,j~~: New employees will be paid on the sliding scale system until the minimum monthly requirements are met..New employees are expected to adhere to all of the company policies outlined herein. GENERAL COHPANY POLICY A. Absenteelsm/Tardlne~r Zn the event that an employee might be late, or miss a day of work, a phone call Is expected no less than three hours before the shift begins. Salesmen who are late for a shift, or leave early, will lose the privilege of called in orders during the time period for which they are not at work. B. ~: The following areas are off limits to all salesmen without express permission from the management: 1. Shipping Area 2. Any desk other than your own 3. Main phone line desks, inCluding fax, postage machine, and filing cabinets C. Non-Comoetition Aareement: See attached form. CONSEQUENCES A. Failure to follow any of the policies described herein, or any policy addendum, may result In any of the following: a verbal or written warning (which will be signed upon receipt), suspension for a period of time determined by the management, or employment termination. ! understand and agree to the te a policie~Jined · PP~NT NAME S~"(~I~IAME-- / DA~E '/ VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. FAFILES~DATAFILE\G~doc.cur~ 102207-at ry. acc C~ated: 06/04/02 08:52:15 AM EDWARD A. POMPONIO, Plaintiff MICHAEL J. GENNA a/k/a MICHAEL J. JENNA, Defendant IN THE COURT OF CC CUMBERLAND COUB NO. 2002-2752 CIVIL ACTION - LAW JURY TRIAL DEMAN3 ATTORNEY'S ACCEPTANCE OF SERVICE I, L. Rex Bickley, Esquire, accept service of the Complaint on bee J. Genna a/k/a Michael J. Genna and certify that I am authorized to do R.C.P. 402. L. Rex Bickley ~'~/~ MMON PLEAS OF TY, PENNSYLVANIA )ED If of Defendant Michael in accordance with Pa. ~ECEIVEL JUN ] F:\FILESkDATAFI LE\Gendoc.curM 02207-pra 1/t d~ Creatcd: 06/c4/02 08:48:48 AM Revised: 10/07/02 04:36:19 PM 102207 EDWARD A. POMPONIO, Plaintiff MICHAEL J. GENNA a/k/a MICHAEL J. JENNA, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-2752 CWIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above captioned case settled and discontinued and issue a certificate reflecting same. MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. Williams, Esquire Ten East High Carlisle, PA 17013 (717) 243-3341 Date: October 7, 2002 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: L. Rex Bickley, Esquire 121 South Street Harrisburg, PA 17101 MARTSON DEARDORFF WILLIAMS & OTTO (~l~i~[ D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: October 7, 2002