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Home My WebLink About2012-5473 SANDRA L. McCORKEL : IN THE COURT OF COMMON PLAINTIFF : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA V. : : PENN PRODUCTS CORPORATION, : DEFENDANT : 12-5473 CIVIL TERM IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT BEFORE HESS, P.J., MASLAND, J. AND PLACEY, J. OPINION AND ORDER OF COURT Masland, J., April 5, 2013:-- Before the court are the Preliminary Objections filed by Defendant Penn Products Corporation to the Second Amended Complaint filed by Plaintiff Sandra L. McCorkel. Following briefing by the parties and argument en banc, we overrule the objections in all respects. I. Background This matter arises from a dispute between the Defendant Corporation and the Plaintiff, a former officer and director of the corporation. The Plaintiff seeks the recovery of salary and sales commissions she claims are due and owing from the Defendant. She also seeks repayment of a loan she made to the Defendant. Defendant presents the following arguments in support of its objections to Plaintiff’s Second Amended Complaint: 1. The Court should dismiss Plaintiffs claim for liquidated damages in Count I because it is not ripe and is statutorily barred by Defendant’s good faith defense; 12-5473 CIVIL TERM 2. The Court should dismiss Count III (Quantum Meruit) because it fails to state a cause of action under Pennsylvania law; and 3. The Court should dismiss Count I due to Plaintiff’s failure to exercise a statutory remedy. II. Discussion A. Liquidated Damages Plaintiff is seeking liquidated damages from the Defendant for failure to pay her wages, pursuant to Pennsylvania’s Wage Payment and Collection Law (Law), 43 P.S. §260.1 et seq. The Law provides, in relevant part: Where wages remain unpaid for … sixty days beyond the filing by the employe of a proper claim … and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater. 43 P.S. § 260.10 (emphasis added). 1. Proper Claim Defendant first claims Plaintiff’s demand for liquidated damages is premature as she did not allow sixty days to pass after filing a statutorily required “proper claim” for her unpaid wages before seeking special damages. According to Defendant, the date of Plaintiff’s proper claim is the date she filed the instant civil Complaint. For her part, Plaintiff contends the date her counsel sent a demand letter to Defendant demanding the payment of salaries and commissions allegedly owed constitutes the date of her proper claim. -2- 12-5473 CIVIL TERM First, because the term “claim” is not defined within the Law, the parties have grappled over the meaning of “filing by the employe of a proper claim.” Defendant would have us focus on the word “filing” and interpret it to require the filing of a civil complaint. We decline to do so. Had the General Assembly intended to require the filing of a proper complaint it would have said so explicitly. Though we must “listen attentively to what a statute says[;][we] must also listen attentively to what it does not say.” Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001) (citation omitted). “[I]t is a canon of statutory construction that a court has no power to insert a word into a statute if the legislature has failed to supply it.” Vlasic Farms, Inc. v. Pa. Labor Rels. Bd., 734 A.2d 487, 490 (Pa. Cmwlth. 1999), aff’d, 777 A.2d 80 (Pa. 2001); see also Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa. Cmwlth. 2004) (we may not insert a word the legislature failed to supply into a statute). As such, we will not insert the requirement of filing a civil complaint into the Law where no such requirement exists. We conclude the demand letter constituted the filing of a proper claim sufficient to trigger the sixty day waiting period under the Law. 2. Good Faith Dispute Defendant next disputes Plaintiff’s right to seek special damages on the basis that there exists a good faith contest or dispute of Plaintiff’s wage claim. Specifically, Defendant points to the action for injunctive relief it filed against Plaintiff and other former officers of the corporation that is currently pending before the Superior Court. In that action, the parties participated in a lengthy and hotly contested hearing on injunctive relief relating to the control of the Defendant -3- 12-5473 CIVIL TERM 1 Corporation. Following the hearing, the undersigned ruled in favor of Corporate plaintiff and granted injunctive relief. That decision is currently on appeal to our Superior Court. No doubt, the ultimate resolution of that case will be relevant to the ultimate determination of good faith in this case, but given the procedural posture of both matters, we conclude, for the purposes of the instant preliminary objections, that the injunctive relief case is not relevant to the question of good faith currently before the court. In ruling on preliminary objections all well-pleaded facts and all reasonable inferences that may be drawn from them are accepted as true. Lutz v. Springettsbury Twp., 667 A.2d 251, 253 (Pa. Cmwlth. 1995). Here, Plaintiff has pled that her wages were withheld in bad faith. Further, the question of bad faith is normally a fact question reserved for the jury. Thomas Jefferson University v. Wapner, 903 A.2d 565, 575 (Pa. Super. 2006). Accordingly, at this early stage in the litigation, it is premature for the court to determine whether Defendant’s contest of Plaintiff’s wage claim was in good faith. B. Quantum Meruit Defendant next seeks dismissal of Count III of Plaintiff’s Complaint on the basis that she cannot seek recovery in quantum meruit where she has already affirmatively pled the existence of a written contract. We agree that, ultimately, Plaintiff may not recover damages for both breach of contract and in quantum meruit; however, at this initial stage of 1 See Penn Products Corporation, David J. Horick, Douglas C. Horick, Marilyn Snyder Budzynski, Executrix-DBN of the Estate of Maybelle Asper, Deceased, Daniel A. Kuhn, Donna Lee Goff, Lewis G. Kuhn, Carolyn Wagner, Doris I. Ernst, and Jean M. Horick v. Sandra McCorkel, Gregory R. Swope, Megan Swope, and John Swope, 12-2838 Civil Term, Cumberland County. Hearing held, May 14, 2012. -4- 12-5473 CIVIL TERM litigation, Plaintiff has the right to plead an equitable remedy in the alternative to her contract claim. Further, if Plaintiff had failed to plead an alternative count of unjust enrichment, that remedy would be unavailable to her if she failed to prove the existence of a contract at trial. Birchwood Lakes Community Ass’n Inc. v. Comis, 442 A.2d 304, 308 (Pa. Super. 1982). Accordingly, this preliminary objection is overruled. C. Failure to Exercise Statutory Remedy Finally, Defendant argues Plaintiff cannot state a claim under the Law as she has failed to exercise the statutory remedy available to her. Specifically, Defendant contends an aggrieved employee seeking to recover special damages under the Law must first pursue a remedy from the Secretary of Labor and Industry. Defendant argues, “Section 260.9a of the [Law], which addresses remedies and penalties, sets forth a detailed procedure for an aggrieved employee or former employee to obtain a remedy through the Secretary of Labor and Industry.” Def. Br. at 9. Defendant is correct, but ignores that seeking a remedy through the Secretary is clearly an alternative to a private cause of action. The relevant statute reads: (b) Actions by an employe, labor organization, or party to whom any type of wages is payable to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction, by such labor organization, party to whom any type of wages is payable or any one or more employes for and in behalf of himself or themselves …. (c) The employe or group of employes, labor organization or party to whom any type of wages is -5- 12-5473 CIVIL TERM payable may, in the alternative, inform the secretary of the wage claim against an employer or former employer, and the secretary shall, unless the claim appears to be frivolous, immediately notify the employer or former employer of such claim by certified mail. 43 P.S. § 260.9a. The clear language of the statute does not require Plaintiff to exhaust her statutory remedy before commencing a civil action in her own right. Accordingly, this preliminary objection is overruled. III. Conclusion For all these reasons, Defendant’s Preliminary Objections are overruled in all respects. Defendant shall file an Answer within 20 days. ORDER OF COURT AND NOW, this day of April, 2013, Defendant’s Preliminary OVERRULED Objections are in all respects. Defendant shall file an Answer within twenty (20) days. By the Court, Albert H. Masland, J. William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 For Plaintiff Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 For Defendant -6- SANDRA L. McCORKEL : IN THE COURT OF COMMON PLAINTIFF : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA V. : : PENN PRODUCTS CORPORATION, : DEFENDANT : 12-5473 CIVIL TERM IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT BEFORE HESS, P.J., MASLAND, J. AND PLACEY, J. ORDER OF COURT AND NOW, this day of April, 2013, Defendant’s Preliminary OVERRULED Objections are in all respects. Defendant shall file an Answer within twenty (20) days. By the Court, Albert H. Masland, J. William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 For Plaintiff Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 For Defendant