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HomeMy WebLinkAbout96-00971 " ~ c ; j i I- I i I o 7 ~ tv :9 oj c!J ,~ 1::5 10 I I I Ii n ~ ~ J u r- 0- " H ..3 0- I ./ o ~ ::::s't '~.3 ~a ~C' 0: e ig ....0( '3 ~ -~ .~ :; ...d; ~", ~~ .- '-'::. 'i" J:~ !~ .'" ,", e~ Cl~ ~- "''::. :5 ;:! " 6. During the course of training Defendant was made aware of Plaintiff's specific requirements for its mel/lber builders and selling process and was, in fact, provided a sales manual outlining these procedures. 7. During the course of her employment, Defendant wilfully breached the terms of her employment as follows: A. Informing builders that they did not have to enroll all homes as required under the Builder Agreement; B. Misrepresented enrollment requirements and inspection requi rements; C. Provided incorrect or misquoted rates to customers. B. On January 29, 1995 while in Houston, Texas for a National Builders Show, Defendant engaged in conversations with other employees concerning salary which are strictly prohibited by office policy. 9. As a result of those discussions with other employees, the base salary of two sales people had to be increased. 10. As a result of the discussions Defendant, apparently under the belief that she was paid less money than other sales people, abandoned the national show which she was attending as a representative of the company and resigned her position. 11. The abandonment of the company while at a national ,how and resigning without notice is a violation of the employment contract signed by Defendant. 12. During the course of her employ, Defendant was provided with various company materials. EMPLOYMENT AGREEMEIl'r This Agreement is made tr.is 3rd day of January. Builders Warranty corporation, P.O. Box 271, Camp Hill, PA to as "12BW", and TRAC~ BAISE TURNER. herein referred to as 1994. between Quall ty 17001. herein referred "TURNERlI . QBW administers a program (the "Program") in the housing industry whereby home-builders registsred with QBW enroll homes in the Program, and the purchasers of the homes 4re protectsd by warranties sgainst certain specified defects. To assist in the establishment of the program in the areas assigned ae well au other future areas, TURNER agrees to recruit builders for the Program, and to provide certain other services necessary to administsr ths Program, under the tsrms and conditions set forth in this Agreement. In consideration of the mutual promises set forth herein and intending to be legally bound, it is agreed by and between QBW and TURNER as follows: I. Performance Standard The parties acknowledge that the success of the employment relationship depends on the number of builders in areas recruited by TURNER who ultimately are registered .ith QBW in the Program, and accordingly, the parties agree that during tho time that thie Agreement remains in effect, TURNER'S minimum monthly quota is 7 completed buildsr applications. The parties understand and agree that the decision whether to register each buildsr recruited by TURNER will be made exclusively by QBW. II. Compensation. Expenses and Fringes A. Ths base salary to TURNER is 525,000.00 per year paid proportionately on a semi-monthly basis. minus the appropriate withholding taxeo. etc. The first pay-period'S salary shall be wi thheld. If TURNER meets her quota and performs her duties as assigned she shall receive an additional 51,500.00 at the end of every 6 month period for which she is employed by QBW, no proration at termination of the employment relationship. B. Commission schedule to be paid on a monthly basis as follows: 1, 5100.00 (One Hundred Dollars) per builder application recruited by TURNER who submit a "completed" application to QBW. Commissions for the month shall be paid on the 15th of the following month. 2. In addition, TURNER will receive 5100.00 (Ono Hundred Dollars) for every approved application. No further commission will be paid on any rejected applications, If the approved builder falls to forward a Construction Notification to QBW within 90 days of approval the 5100.00 approval commission shall be forfieted. 3. Dollar) S50.DD. Subsidiary company applications shall receive a one time 550.00 (Fifty commission only, or the amount paid by the subsidiary company if less then 4. A further commission of two and one-half percent (.025) of the paid premium will be paid to TURNER for each home constructed by a registered QBW builder who was recruited by TURNER and which home is accepted by QBW. Should employment terminate for any reason, no further commissions or salaries shall be paid by QBW after date of termination, C. Fringe 8enefits 1. TURNER may receive a company car or car allowance at the option of QBW. 2, The auto casualty/liability insurance shall be obtained and cost of same shall be borne by QBW 1f a cOlllpany car 1& supplhd. QBW will elso pay for the regular maintenance if a company car is supplied. TURNER will be responsible for scheduling the car for maintenance and keeping it clean and pruentable. If a mechanical failure occurs because TURNER fails to maintain the car then she will be responsible to pay for corrective work. 3. Health (Medical! insurance, as paid by QBW on its group insurance program, will be provided to TURNER after ninety (90) days of employment. Cost of any additional dependents shall be borne by TURNER. In addition, TURNER shall be entitled to six (6) paid sick days per annum, not to bs used as personal days and non-cumulative. 4. year of builders, TURNER will employment. TURNER will receive two week paid vacation (ten (10) days) in the first Upon attaining two hundred and fifty (250) approved receive three (3) weeks paid vacation in subsequsnt ysars. o. Expense-Account Ths expense account shall be for fuel and other QBW pre-approved expenses. TURNER shall be responsible for submitting an itemized sxpenss report on a monthly basis (25th of the month) substantiated by the necessary and appropriate original receipts to QBW. Upon the approval of the expense report by \l8W, reimbursement wiU be made to TURNER. E. Termination TURNER shall not receive or be entitled to receive any commissions on homes enrolled by QBW after date of termination. III. Restrictive Covenants TURNER agrses that at no time during the term of her employment, and for a period of two (2) years immediatoly following the termination of employment, will she, for herself or on behalf of any person or ent! ty other than Q8W, be employed by or engage in the recruitment of builders for and in connection with the programs (for newly constructed or manufactured homes. etc.) other than that offered by Q8W within the states where QBW is registered. TURNER also agrees that all records of the names and addresses of builders registered in the Program and any other records relating in any manner whatsoever to the registered builders, whether compiled or prepared by TURNER or otherwise coming into her possession. shall be the exclusive property of QBW and will be returned to Q8W illlll1ediately upon termination of employment, As such, during the term of employment and for a period of two (2) years thereafter, TURNER shall not at any time, directly or indirectly, use or disclose to any person, except to Q8W and its duly authorized officers and employees entitled thereto, the list of rElgistered or applicant builders, their credit classifications, records, statistics, or other information with respect to rsgistered or application builders, acquired by TURNER or anyone else in the course of the performance of her duties under this Agreement in any capacity whatsoever. nor shall she in any manner, directly or indirectly, aid or be party to any acts, the effect of which would intend to divert, diminish or prejudice the good will or business of QBW. IV. Miscellaneous A. This Agreement supercedes any and all other agreements, either oral or written. between the parties hereto and respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect to the subject matter hereot, B. If one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable- in any respect, such invalidity, illegality or unenforceability shall not aftect any other provisions hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. C. TURNER will provide QBW with 30 days advance written notice before qui tting. If notice of termination is given by TURNER, QBW has the option to accept or reject any portion of the thirty (30) day notice period. If QBW rejects the notice period, QBW is not responsible for compsnsation during this period and termination of TURNER's employment is immediate. QBW may terminate the employment of TURNER as an at will employee. D. The waiver by either party of any breach of this Agreement on the part of the other shall not constitute or be construed to be a waiver by such party of any subsequent breach by the other. E. TURNER shall devote her entire productive time, ability, and attention to the business of QBW during the term of her employment. TURNER shall not directly or indirsctly render any services of a business, commercial, or a professional naturs to any other person or organization whether f~r compensation or otherwise, without the prior written consent of QBW. F. This Agreement shall be binding upon the parties hereto and their heirs, representatives, successors and assigns. I>>JWITNESS WHER~, the parties hereto~ have executed this Agreement of the .:;> day of .:...J,.:/--.> . 199\, \ ~ ( '( ~ ~neBS ._ ,\C-<....;~...- ~s ATTEST: CORPORATION ~ By <::W,,"~,,~~ I TRACY B ISE TURNER EXHIBIT B " .- :at \ .....:t OI!TI(% RIlLES AND cmIJI![.INP.S <') arr:tCI!: IDlRS 'the QBW office opens Prem;:t:l1 at S;OO AlII and conducU requ1U' busines hours until ~ lCO ;m, ~0yft4 are e:qleCted to be raady to I:eqin vorle by S;et"AlII, I~' "Gttt:inq yeursel! situated" should be dene I:efore Sloo "AlII, and aU equipnent: should be on and voa rudy to c:cu:menc:. by SICa, Employea are ~ad to I/Crlc until ~ lea;m, Puttinq t:.'tinq. away, shuttinq of! _chine and pac:.ldnq UQ ytlW: persenal 1tllll8 shoUld be don. after ~:OO ;m. J r.mcI lIXIRS' Eac:.'1 employ.. nceives en (1) hour for lunch each day, You are required t.o take al: lU51: 1/2 hcur lunch, If ycu an makinq up time, you my USe t.'1e ot.'1er: 1/2 how: for t."lc.e purposes, All other tilne IIlIllIt be made ~ befon or attar regular IIOrlc hours. At t."e beqinninq of ycur C9loyment, you will receive a ac:.'1eCuled time for ycur lunc:.'l hour. 'l:hia, is to l.IIoid-hav.ing tea many ~ple oue of t.,e office at en. time. Also, ve have a ccn!erence/lunc:.'1 ~...<:m lCC3e9d in the of~ice for yew: convenience. Jl. ret::icq.otcr and mi=wave are lCC3teC in the area tot' yow: wse. '!ou are re:J9Cn.:s il:le fot' IIaIlhinq 'fOur C'ooTl dishes and cleaning ~ atter: ycuraeU. &'lUlle wi.~ dC'Jl1 t.'1e table when ne~ed. ,.~ If you u. tiling ycut' lunc:.' hour oue of t:."le office, we co ex;ec:t 'fOu bac:.1( ..it."lin an hcur. Shculd 3cmet."inq hap~n to aaJca you late in returning, plea.3e l.Jmwdiaeely <;0 to either t."e '(ii, eperatien.:s Managet' cr t:."e ~:e5idene and let him/her knew t:.~e you \lere laee, hew many minuee5 'leu "1IC'9 C'leC' yeur allcer.! hour, and \lhen you ineend to make ll\l t."lat ti..t.. , . '-'It...J.C4 {""J...aW11-~-. 1"'~ -., . , Alri Womat:icln raqardinq t.'1e businlWl Ijlnc'"..ic:u and intlCBl 1ICI:!d.nc;. of c;ualit:'f Builder.! Wa.rnnty is =nlid..tial, It yea neUv. a phcn. c:all a.slcincJ for WOCl&cion, sudl as ~ of ~oyftS, lenq'"...'1 of time in buainlWl, haw 10119 an lIIIpl.oyM has been wit." t.". c=pany, rwmi:Ier of bullCer3 in Olll:' p~, et.:., yQu rray net: cli.:!scles. t."IU WCCI&t..ien. It it. is & bulle.:-, refer him/l'ler to t.'1. a;:pro9t"iata .sal~'"3Cll. U it: is & haDeOWner, arr{ r:equet for in!~tion IIIUSt: be 5\.lI:.aIit:tlld in vrll:inq. I.: you an =ur:a of 't.'1. sit:'Jilt..ion, pleas. nfer t.'1. c:all t.o one of t..'"J. IIIiWlg&a or Me'. Olshebld. ACCitionally, !!!:! wcussi~ wit..'1 arr{ ot.,er fll9lCl'flMS or nc:n- relat.ed !asnilylllelli:er3 reqar-'..ing yQur or' cOer IIllPIClY"'s ( "..4flSation by caw, or QBW's revenues, will be greur.d.s for i-tiatlll .-1i .nli ..sa! and b. Ceened willful iIIUIc::nQ.lc:::. Also, no QSW rrat:er:.als, .suc:."\ ~ manuals, l.!.se.s or rl9C1:""..s, rDaY 1:. removed =:m e..,e of:ice unless ~r::dssi::n has t:ee.'l g=3r.cad t:y a manage:. ~ m-BINS Eac:.'1 8JD!illoyee should have one desiqnated in-bin for all inceming paperwork. 'l'hat. in-bin must be empty befOt'9 you leave ac t.ha end of aac.'1 Cay. You may have ot.her bins to which you sor: yQur inccaIing pa;er.or~<, but yQllI:' designated in-bin IIlUSt be empty so that ot.her:s IIill know that you have received, t'eviewed and prioritized your paperwot'k. tIlESS CDlE The dress cxe is professional. No street: clot..'uJ, suc.'1 ~ sneakers, jeans ot' leggins are allowes. !Ie denim of any kind is parmi teed. including skir.-...s. employees fraY wera pants ~ long ~ they are dress slacks. ,) VERIFICATION I hereby affirm that the following facts are correct: Joseph M. Olshefski appears for the Plaintiffs ilnd represents that he is authorized to make this Verification on behalf of them; the attached Complaint is based upon Information which I have furnished to my counsel and information which has been gathered by my counsel. The language of the Complaint 15 that of counsel and not of me. I have read the Complaint and to the extent that the Complaint 15 based upon information which I have given to my counsel. is true and correct to the best of my knowledge. information. and belief. To the extent that the contents of the Compla1 nt 15 that of counsel. I have re11ed upon counsel in making this Ver1flcatlon. I hereby acknowledge that the facts set forth in the aforesaid Complaint Is made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn fals1f1catlon to authorities. Corp. Date: ,;;l.~-f(, , 1..":,,) I; I I , I , . , '. I .. ~J I i '::. , ( . l. - . , , ',';1 t - , I .:.l.. <..-; , , I.."") , ( . "- ) C) l!l - ,.. - <( 001- iii :l x> ffi <{ ~ ~ !JZWZ tl: . 0 z O:Cu:w LLl1. ~ . 0 . 5 ~ Iii~ :> o:l ::>~m i J: ,~ .. , QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS Of CORPORATION, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. No. 1996- 971 Civil Term TRACY BAISE TURNER, Defendant CIVIL ACTION - LAW DEFENDANT'S ~RELIMINARY OBJECTIONS TO COMPLAINT And now this ~day of September, 1996, comes the Defendant in the above captioned action by her attorney, Wm. H. Hast, Esquire, who preliminarilY objects to the Complaint as follows: 1. The Complaint was filed on February 22, 1996; the copy forwarded to Defendant's counsel for the acceptance of service had not been reinstated, more than 90 days having expired between February 22, 1996 and August 21, 1996, the date on which the Complaint was received together with a covering letter dated August 16, 1996. Accordingly the Complaint should be stricken as being in improper form or for improper service as prOVided in Pa. R.C.P. 1028(a)(1). Also see Pa. R.C.P. 401, 404. 2. The Complaint recites the identical cause of action pleaded as a setoff to the Defendant's Complaint filed in Your Honorable Court to No. 1996-1499, Civil Action, the allegations contained in ParagraphS 16 through 33 of this action are hereby incorporated herein as fully as though they were set forth at length. Accordingly the Complaint should be stricken as an improper attempt to split a cause of action, resulting in a lack of jurisdiction over the subject matter of the suit, a basis for preliminary Objection pursuant to Pa. R.C.P. 1028(a)(1). 3. In Paragraph 16 of the Complaint the Plaintiff alleges that it has sustained liqUidated damages in the amount of $109,068.00 and unliquidated damages in an amount yet to be determined. Nowhere does the Plaintiff itemize the liquidated damages or further specifY the unliquidated damages. The allegations are legally insufficient in specificity to permit the Defendant to answer them. Accordingly the Defendant requests a more sufficient Complaint as