Sondesky v. Cherry Scaffolding Inc. et alMOTION for Partial Summary Judgment Pursuant to Rule 56, Federal Rules of Civil ProcedureE.D. Pa.May 19, 2017UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LINDA SONDESKY : : Plaintiff : CIVIL ACTION : v : No. 2:16-cv-05667-AB : CHERRY SCAFFOLDING, INC., et. al. : : Defendants : : ORDER AND NOW, this day of , 2017, upon consideration of Defendants Cherry Scaffolding, Inc. and Stephen Ellis’ Motion For Partial Summary Judgment Pursuant To Rule 56, Federal Rules of Civil Procedure and response thereto, it is hereby ORDERED and DECREED that motion is GRANTED. IT IS FURTHER ORDERED that: 1. Count I of the Plaintiff’s Amended Complaint is dismissed with prejudice. BY THE COURT: Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LINDA SONDESKY : : Plaintiff : CIVIL ACTION : v : No. 2:16-cv-05667-AB : CHERRY SCAFFOLDING, INC., et. al. : : Defendants : : DEFENDANTS CHERRY SCAFFOLDING, INC. AND STEPHEN ELLIS’ MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO RULE 56, FEDERAL RULES OF CIVIL PROCEDURE PLEASE TAKE NOTICE that the defendants Cherry Scaffolding, Inc. and Stephen Ellis, by and through their attorneys, move this Court pursuant to Rule 56, Federal Rules of Civil Procedure for partial summary judgment in their favor and against plaintiff Linda Sondesky in connection with Count I of the Plaintiff’s Amended Complaint. In support of the motion the defendants incorporate by reference the attached Memorandums of Law and accompanying papers. PLEASE TAKE FURTHER NOTICE that a proposed form of Order is attached. Respectfully submitted, By: SFM6768 Steven F. Marino, Esquire PA Attorney I.D. No. 53034 MARINO ASSOCIATES 301 Wharton Street Philadelphia, Pa 19147 Telephone: (215) 462-3200 Telecopier: (215) 462-4763 smarino@marinoassociates.net Attorneys For Defendants Cherry Scaffolding, Inc. and Stephen Ellis Dated: May 19, 2017 Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 2 of 17 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LINDA SONDESKY : : Plaintiff : CIVIL ACTION : v : No. 2:16-cv-05667-AB : CHERRY SCAFFOLDING, INC., et. al. : : Defendants : : DEFENDANTS CHERRY SCAFFOLDING, INC. AND STEPHEN ELLIS’ MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO RULE 56, FEDERAL RULES OF CIVIL PROCEDURE The defendants Cherry Scaffolding, Inc. and Stephen Ellis, by and through counsel, provide the instant submission in support of the Defendants’ Motion for Partial Summary Judgment pursuant to Rule 56, Federal Rules of Civil Procedure. I. INTRODUCTION This action is brought by the plaintiff Linda Sondesky, a former of employee of defendant Cherry Scaffolding, Inc., upon a basis that the defendants Cherry Scaffolding, Inc. and Stephen Ellis retaliated against her in violation of the Fair Labor Standards Act. II. STATEMENT OF PROCEDURAL HISTORY On October 31, 2016, the plaintiff initiated this action against defendants Cherry Scaffolding, Inc. and Stephen Ellis by filing a Complaint in the United States District Court for the Eastern District of Pennsylvania. On December 22, 2016, defendants filed an Answer and Affirmative Defenses. On January 5, 2017, the plaintiff filed an Amended Complaint. The Amended Complaint Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 3 of 17 2 includes statutory and common law causes of action claiming that the defendants violated the Fair Labor Standards Act, the Pennsylvania Wage Payment and Collection Law, the Dragonetti Act, and abused process. On January 19, 2017, the defendants filed and served upon the plaintiff a Motion To Dismiss the Plaintiff’s Amended Complaint Pursuant To Rule 12(b)(6), Federal Rules Of Civil Procedure. The court has not entered an order in connection with the defendants’ Motion To Dismiss the Plaintiff’s Amended Complaint Pursuant To Rule 12(b)(6). On April 18, 2017, the court directed that the parties proceed with discovery in the matter. On May 12, 2017, the defendants served the plaintiff and Answer to the Plaintiff’s Amended Complaint with Affirmative Defenses and a Counterclaim. The defendants’ instant motion for partial summary judgment follows. III. MATERIAL FACTS OF RECORD Defendant Cherry Scaffolding, Inc. is corporation for profit in the business of selling, renting, and erecting scaffolding and access equipment the general public [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. Cherry Scaffolding, Inc. was established in 1986 by its founder and CEO defendant Stephen Ellis [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. Cherry Scaffolding, Inc. employs an estimated fifteen (15) employees [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. Defendant Stephen Ellis is domiciled in Morro Bay, California [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. The business operation of Cherry Scaffolding Company, Inc. is located in Bensalem, PA 19020 [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. Stephen Ellis is an absentee CEO of Cherry Scaffolding, Inc. and as such relies significantly upon his management team employees to exercise their own discretion and independent judgment to resolve problems and carry out the details of the Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 4 of 17 3 day to day operation of Cherry Scaffolding, Inc. [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. As a result of the retiring of Cherry Scaffolding, Inc.’s long time key management personnel, in the calendar year of 2015 the business of Cherry Scaffolding, Inc. fell into disarray and was underperforming. In the calendar year of 2015 defendant Stephen Ellis undertook a search for an employee applicant who had a skill set to serve in the capacity of an administrator capable of restoring the performance and profit making potential of the company in addition to performing bookkeeping duties. On or about October 2015, defendant Stephen Ellis posted a classified advertisement on the website CraigsList announcing the availability of a fulltime bookkeeping / financial controller position [see classified advertisement posted on the website CraigsList attached hereto and marked Exhibit 2 (bates stamped Cherry000001)]. The advertisement announced that defendant Cherry Scaffolding, Inc. was a business that was underperforming and that the applicant would be expected to take an active role in the overview of all company operations and procedures. The advertisement announced that defendant Cherry Scaffolding, Inc. was in search of an energetic innovative person not afraid to rock the boat with positive ideas. The advertisement announced that defendant Cherry Scaffolding, Inc. was in search of an applicant with an extensive and broad knowledge of all aspects of computerized spreadsheet and balance sheet online data base platforms. The advertisement announced that defendant Cherry Scaffolding, Inc. was in search of an applicant qualified to perform tasks which involved computation of payroll taxes, calculation and payment of union benefits, handling unemployment compensation requirements, initiate sales billings, initiate rental billings, accounts receivable management, sales tax collection and reporting, inventory control, and accounts payable management. The advertisement announced that it was preferred that the applicant be a non-smoking person and that the position paid a yearly salary equal Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 5 of 17 4 to fifty five thousand dollars ($55,000.00). Plaintiff Linda Sondesky responded to the advertisement and was interviewed over the telephone [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. During the telephone conversation defendant Stephen Ellis offered the plaintiff employment and agreed to increase her salary to sixty thousand dollars ($60,000.00) after the expiration of a period of ninety (90) days [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. On or about October 22, 2015, plaintiff Linda Sondesky accepted the terms of compensation, the conditions of employment, and was hired to work fulltime on behalf of defendant Cherry Scaffolding, Inc. [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. The plaintiff’s primary duty was the performance of nonmanual work directly related to the management or general business operations of defendant Cherry Scaffolding, Inc. which required that she customarily and regularly exercise discretion and independent judgment [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]; [see Plaintiff’s Amended Complaint - paragraph 20 attached hereto and marked Exhibit 3]. Secondary to performing management responsibilities relating to the day to day operation of the business of Cherry Scaffolding, Inc., the plaintiff was assigned to perform duties associated with routine bookkeeping [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. In email exchanges, correspondence and telephone conversations by plaintiff Linda Sondesky held herself out as the Office Manager of Cherry Scaffolding, Inc. [see email exchanges, correspondence and telephone conversations transcript relating to plaintiff Linda Sondesky attached hereto and marked Exhibit 4 (bates stamped Cherry000002-000025)]. Email exchanges, correspondence and transcripts of telephone conversations establish that plaintiff Linda Sondesky exercised management responsibility and performed duties involving: (1) facilitating company marketing [see Email exchange dated January Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 6 of 17 5 15, 2016 through January 18, 2016, attached hereto and marked Exhibit 4 (bates stamped Cherry000002-000004)]; (2) criminal investigation of prior employee [see Email exchange dated January 19, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000005-000006)]; (3) weekly management meetings [see Email exchange dated January 21, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000007-000008)]; (4) negotiating payment plans [see Email and transcript of telephone conversation dated February 1, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000009-000012)]; (5) facilitating the collection of a performance bonds [see Email exchange dated February 3, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000013-000014)]; (6) criminal investigation of prior employee [see Email exchange dated February 10, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000015)]; (7) filing unemployment compensation fraud reports [see Email exchange dated February 12, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000016-000017)]; (8) filing appeals of tax assessments [see Email exchange dated February 25, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000018-000019)]; (9) information technology [see Email exchange dated February 25, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000020-000021)]; (10) facilitating the collection of company’s outstanding receivables [see Email exchange dated February 26, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000022-000023)]; (11) participating in cost and revenue estimating relating to prospective scaffolding erection projects [see Email exchange dated March 1, 2016 attached hereto and marked Exhibit 4 (bates stamped Cherry000024-000025)]. On or about March 7, 2016, the plaintiff was terminated from her position with defendant Cherry Scaffolding, Inc. for insubordination [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 7 of 17 6 After the plaintiff’s separation from defendant Cherry Scaffolding, Inc. it was discovered by defendant Cherry Scaffolding, Inc. that plaintiff Linda Sondesky, without authority or consent of defendant Cherry Scaffolding, Inc., had converted her salaried compensation plan into an hourly wage plan, and paid herself an hourly wage for falsified overtime hours and for the hours which she spent traveling to and from her house to work [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. On April 13, 2016, defendant Cherry Scaffolding, Inc. filed a Civil Complaint against plaintiff Linda Sondesky in Magisterial District 07-1-01 demanding recovery of two thousand five hundred sixty six dollars nine cents ($2,566.09) which represented the value plaintiff Linda Sondesky was believed to have overpaid herself [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. The matter filed in Magisterial District 07-1-01 was captioned Cherry Scaffolding, Inc. v Linda Sondesky and assigned docket no. MJ-07101-CV-0000069-2016 [see Civil Complaint Cherry Scaffolding, Inc. v Linda Sondesky, docket no. MJ-07101-CV-0000069-2016 attached hereto and marked Exhibit 5 (bates stamped Cherry000026)]. On June 23, 2016, a Civil Complaint hearing was scheduled to convene in Magisterial District 07-1-01[see docket sheet generated by the Pennsylvania Unified Judicial System web portal attached hereto and marked Exhibit 6 (bates stamped Cherry000027)]. On June 23, 2016, defendant Cherry Scaffolding, Inc. appeared at the Magisterial District 07-1-01 through its general manager, Ms. Laura Krimmel, and without counsel [see Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. On June 23, 2016, prior to accepting evidence or considering the merits of the dispute, the Honorable District Judge Michael Gallagher dismissed the Civil Complaint filed by Cherry Scaffolding, Inc. pursuant to Pa.R.C.P.D.J. No. 207 and entered judgment on behalf Linda Sondesky and against Cherry Scaffolding, Inc. upon a basis that Cherry Scaffolding, Inc. had violated Pa.R.C.P.D.J. No.207 [see Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 8 of 17 7 Affidavit of Stephen Ellis attached hereto and marked Exhibit 1]. No determination on the merits of the claims or defenses arising in the controversy presented by the Civil Complaint was undertaken in the Magisterial District Court. IV. ARGUMENT PRESENTED A. STANDARD OF REVIEW AND BURDEN OF PROOF Summary Judgment is appropriate when the moving party demonstrates (1) that there is no genuine dispute as to any material fact; and (2) that it is entitled to judgment as a matter of law. 1 The function of summary judgment is not to resolve factual disputes, but rather to determine whether a party’s proof, if believed, could support a finding on behalf of the nonmoving party. The court must accept all of the nonmoving party’s properly supported assertions as true and give the nonmoving party the benefit of all reasonable inferences from those assertions. 2 B. THE PLAINTIFF IS A SALAIED EMPLOYEE EXEMPT FROM OVERTIME PAY REQUIREMENTS WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT OF 1938, 29 U.S.C.S. § 213(A)(1) Pursuant to Section 213(a)(1) of the Fair Labor Standards Act of 1938, any employee employed in a bona fide administrative capacity is exempt from overtime pay requirements within the meaning of the Fair Labor Standards Act of 1938. Section 29 U.S.C.S. § 213(a)(1) reads in its relevant part: 1 Rule 56, Federal Rule of Civil Procedure 2 Anderson v Liberty Lobby, Inc. , 477 U.S. 242, 255, S.Ct. 2505, 91 L.Ed. 202 (1986); Arbruster v Unisys Corp., 32 F.3rd 768 (3rd Cir. 1994); Gray v New York Newspapers, Inc., 957 F.2d 1070 (3rd Cir. 1992) Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 9 of 17 8 §213. Exemptions Minimum wage and maximum hour requirements. The provisions of sections 6 (except section 6(d) in the case of paragraph (1) of this subsection) and 7 [29 USCS §§ 206, 207] shall not apply with respect to- (1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the Administrative Procedure Act [5 USCS §§ 551 et seq.] except than [that] an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities) The term bona fide administrative capacity employee within the meaning of Section 213(a)(1) is defined at 29 CFR 541.200. 29 CFR 541.200 provides: § 541.200 General Rule For Administrative Employees (a) The term "employee employed in a bona fide administrative capacity" in section 13(a)(1) of the Act shall mean any employee: (1) Compensated on a salary or fee basis pursuant to § 541.600 at a rate per week of not less than the 40th percentile of weekly earnings of full-time nonhourly workers in the lowest- wage Census Region (or 84 percent of that amount per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. Beginning January 1, 2020, and every three years thereafter, the Secretary shall update the required salary amount pursuant to § 541.607; (2) Whose primary duty is the performance of office or non- manual work directly related to the management or general Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 10 of 17 9 business operations of the employer or the employer's customers; and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. (b) The term "salary basis" is defined at § 541.602; "fee basis" is defined at § 541.605; "board, lodging or other facilities" is defined at § 541.606; and "primary duty" is defined at § 541.700. The term salary basis within the meaning of Section 213(a)(1) is defined at 29 CFR 541.602. 29 CFR 541.602 provides in its relevant parts: § 541.602 Salary basis. General rule. An employee will be considered to be paid on a "salary basis" within the meaning of this part if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. (1) Subject to the exceptions provided in paragraph (b) of this section, an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. Exempt employees need not be paid for any workweek in which they perform no work. *********************************************** Prior to December 1, 2016, to qualify as an exempt administrative employee under Section § 213(a)(1) of the Fair Labor Standards Act an employee had to be compensated with a minimum salary equal to $455.00 per week which amounts to $23,660.00 annually. 3 After December 1, 2016, to qualify as an exempt administrative employee under Section § 213(a)(1) of the Fair Labor 3 29 CFR 541.600; 69 FR 22122 Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 11 of 17 10 Standards Act an employee had to be compensated with a minimum salary equal to $913.00 per week which amounts to $47,476.00 annually. 4 The term “primary duty" within the meaning of Section 213(a)(1) is defined at 29 CFR 541.700. 29 CFR 541.700 provides: § 541.700 Primary Duty (a) To qualify for exemption under this part, an employee's "primary duty" must be the performance of exempt work. The term "primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. (b) The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee. Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole test, and nothing in this section requires that exempt employees spend more than 50 percent of their time performing exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion. (c) Thus, for example, assistant managers in a retail establishment who perform exempt executive work such as supervising and directing the work of other employees, ordering merchandise, managing the budget and authorizing payment of bills may have management as their primary duty even if the assistant managers spend more than 50 percent of the time performing nonexempt work such as running the cash register. However, if such assistant managers are closely 4 29 CFR 541.600; 69 FR 32391 Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 12 of 17 11 supervised and earn little more than the nonexempt employees, the assistant managers generally would not satisfy the primary duty requirement. The material facts of record demonstrate that the plaintiff was a salaried employee paid sixty thousand dollars ($60,000.00) per year. There can be no legitimate dispute that the plaintiff’s salary exceeded the minimum required by regulation and qualified her as a candidate as an exempt employee pursuant to Section 213(a)(1) of the Fair Labor Standards Act. The material facts of record demonstrate that the primary work duties which the plaintiff performed on behalf of defendant Cherry Scaffolding, Inc. included: Computation and payment of payroll taxes; Computation and payment of sale taxes; Calculation and payment of union benefits; Handling unemployment compensation requirements; Initiate sales billings; Initiate rental billings; Accounts receivable management; Sales tax collection and reporting; Inventory control; Accounts payable management; Processed new employees; Facilitated the arrangement of new employees medical benefits; Participated in the oversight of all company operations; Participated in the oversight of all company procedures; Manage correspondence and communication with customers and prospective customers relative to the business of the company; Manage correspondence and communication with contractors relative to the business of the company; Was expected to serve as the company representative appearing in the Magisterial District Court in connection with all small claims matters filed on behalf of the company; Was expected to serve as the company representative appearing in all unemployment compensation hearings in connection with employee’s claims to collect unemployment compensation benefits; Exercised broad discretionary powers facilitating the company’s financing arrangement of insurance premiums; Exercised broad discretionary powers facilitating the collection of Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 13 of 17 12 company’s outstanding receivables; Exercised broad discretionary powers binding the company to contract with vendors who provided receivable collection services; Exercised broad discretionary powers negotiating on behalf of the Company and binding the Company to contract in connection with collecting outstanding company receivables; Exercised broad discretionary powers facilitating the collection of the company’s Certificates of Insurance and allocating them to the proper parties; Exercised broad discretionary powers authorizing the transfer and allocation of company funds and lines of credit among multiple company bank accounts; Exercised broad discretionary powers authorizing the purchasing of computer software; Exercised broad discretionary powers authorizing the purchasing of office supplies; Exercised broad discretionary powers ensuring the company’s licensing and regulatory compliance; Served as the company representative and exercised broad discretionary powers investigating the theft committed by a previous employee, Mr. Drew Connelly; Directed the work assignment of employees; Provided the CEO of the company with consultation and recommendation, upon which he relied, with respect to decisions associated with the increase or decrease of compensation rates of certain employees; Provided the CEO of the company with consultation and recommendation, upon which he relied, with respect to the dates upon which an increase or decrease of compensation rates of certain employees was to become effective; Provided the CEO of the company with consultation and recommendation, upon which he relied, with respect to the hours which certain employees were to be scheduled to work; Provided the CEO of the company with consultation and recommendation, upon which he relied, with respect to vehicle assignments to employees; Provided the CEO of the company with consultation and recommendation, upon which he relied, with respect to cost and revenue estimating relating to prospective scaffolding erection projects; Required attended and participate in weekly scheduled business operation meetings during which business operations, objectives, business planning was discussed and made recommendations about the same which were relied upon by the CEO of the company; Required to exercise her own discretion and independent judgment to resolve problems and settle issues which arose during the day to day Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 14 of 17 13 operation of the company’s business affairs. The material facts of record establish that the plaintiff's principal, main, major and most important duties involved the performance of nonmanual work directly related to the management or general business operations of defendant Cherry Scaffolding, Inc. Moreover, Paragraph 20 of the plaintiff’s Amended Complaint concedes the fact that the plaintiff's principal, main, major and most important duties involved the performance of nonmanual work directly related to the management or general business operations of defendant Cherry Scaffolding, Inc. Paragraph 20 of the plaintiff’s Amended Complaint provides: 20. Specifically, Plaintiff had a telephonic conversation with Ellis wherein she explained that because the office was in such disarray, she needed to be paid for hours that she was actually putting in as the bookkeeper. Paragraph 20 of the plaintiff’s Amended Complaint concedes the fact that the majority of the plaintiff’s time was dedicated to the performance of exempt work. Considering the material facts of record in their totality and in light of the controlling regulations, there exists no material issue of fact in dispute which a jury need determine that the plaintiff was employed by defendant Cherry Scaffolding, Inc. in a bona fide administrative capacity within the meaning of section 213(a)(1) of the Fair Labor Standards Act. Accordingly, the defendants Cherry Scaffolding, Inc. and Stephen Ellis’ Motion for Partial Summary Judgment on the grounds that the plaintiff is an employee exempt from the overtime pay requirements should properly be granted. Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 15 of 17 14 V. CONCLUSION For the foregoing reasons and any others which may arise pending a hearing on this matter, defendants Cherry Scaffolding, Inc. and Stephen Ellis, respectfully requests that this Honorable Court grant the Motion for Summary Judgment pursuant to Rule 56, Federal Rules of Civil Procedure and enter and order dismissing Count I of the plaintiff’s Amended Complaint with prejudice. Respectfully submitted, By: SFM6768 Steven F. Marino, Esquire PA Attorney I.D. No. 53034 MARINO ASSOCIATES 301 Wharton Street Philadelphia, Pa 19147 Telephone: (215) 462-3200 Telecopier: (215) 462-4763 smarino@marinoassociates.net Attorney for defendants Cherry Scaffolding, Inc. and Dated: May 19, 2017 Stephen Ellis Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 16 of 17 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LINDA SONDESKY : : Plaintiff : CIVIL ACTION : v : No. 2:16-cv-05667-AB : CHERRY SCAFFOLDING, INC., et. al. : : Defendants : : CERTIFICATE OF SERVICE I certify that on the below listed date, I caused to be delivered a sealed envelope containing a copy of the foregoing Defendants Cherry Scaffolding, Inc. and Stephen Ellis’ Motion For Partial Summary Judgment Pursuant To Rule 56, Federal Rules of Civil Procedure and supporting documents upon the persons and in the manner indicated below, which service satisfies the requirements of F.R.C.P. No. 5. Regular Mail and Electronic Case Filing: Wayne A. Ely, Esquire Timothy M. Kolman, Esquire W. Charles Sipio Esquire Kolman Ely, PC 414 Hulmeville Avenue Penndel, PA 19047 [Counsel for plaintiff] MARINO ASSOCIATES By: SFM6768 Steven F. Marino, Esquire Attorney I.D. 53034 Attorneys for Defendants Dated: May 19, 2017 Case 2:16-cv-05667-AB Document 39 Filed 05/19/17 Page 17 of 17 Exhibit 1 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 1 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 2 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 3 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 4 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 5 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 6 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 7 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 8 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 9 of 49 Exhibit 2 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 10 of 49 Cherry000001 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 11 of 49 Exhibit 3 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 12 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 13 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 14 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 15 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 16 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 17 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 18 of 49 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 19 of 49 Exhibit 4 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 20 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 8:09 AM Subject: Fwd: appointment reschedule To: Laura Krimmel ---------- Forwarded message ---------- From: Angie Kopach Date: Mon, Jan 18, 2016 at 8:25 AM Subject: Re: appointment reschedule To: Linda Sondesky Good morning Linda I wanted to reach out to you as regarding the price increase we spoke about on Friday. I saw that you all had not purchased the Prem. Proview in 2014 when The Blue Book launched the project. Here is a video on it and a link to Cherry's. https://www.youtube.com/watch?v=1eze83sr32M https://www.youtube.com/watch? v=2nuY1UUA0es www.thebluebook.com/iProView/410400 The additional $30.00 a month proview was launched in 2014 but was optional. When we launched the seo work for our clients it was required with all our subs, GC, architects and suppliers.. the $30.00 is $360 a year X 2.. I did review the proview and updating it with Robert when I was with him. I wanted to share this important info asap.. Have a great day and please let me know if I can do anything for you. Angie Page 1 of 3 Cherry000002 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 21 of 49 Angie Kopach Business Development Consultant The Blue Book Network akopach@mail.thebluebook.com (484) 866-0499 www.thebluebook.com On Fri, Jan 15, 2016 at 10:59 AM, Linda Sondesky wrote: Sure. I have some questions anyway. I am here until 3:30 today. On Fri, Jan 15, 2016 at 9:36 AM, Angie Kopach wrote: Linda.. Can we do this over the phone this afternoon On Friday, January 15, 2016, wrote: Please renew. I copied Linda on here please coordinate with her. Robert Downey, Jr 215.791.4095 On Jan 14, 2016, at 6:37 PM, Angie Kopach wrote: Hi Robert.. I do need to get you on my calendar next week to take care of your advertising.. Can we do Thursday the 21sr at 11:30? Do you have question for me? Let me know if that works or if we need to look at another time. Thank you Angie Kopach Business Development Consultant Page 2 of 3 Cherry000003 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 22 of 49 The Blue Book Network akopach@mail.thebluebook.com (484) 866-0499 www.thebluebook.com -- Angie Kopach Business Development Consultant The Blue Book Network akopach@mail.thebluebook.com (484) 866-0499 www.thebluebook.com -- Linda Sondesky Office Manager Cherry Scaffolding PO Box 247 Croydon, PA 19021 215-244-1182 215-244-0533 fax Page 3 of 3 Cherry000004 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 23 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 9:10 AM Subject: Fwd: Drew Conley To: Laura Krimmel ---------- Forwarded message ---------- From: Date: Tue, Jan 19, 2016 at 7:00 AM Subject: Fwd: Drew Conley To: Linda Sondesky Good morning Linda; Please gather everything we have on Drew & send it to Officer Clark. Thanks Robert Downey, Jr 215.791.4095 Begin forwarded message: From: "Clark, Steve" Date: January 18, 2016 at 3:54:10 PM EST To: "'robertdowneyjr@cherryscaffolding.com'" Subject: Drew Conley Page 1 of 2 Cherry000005 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 24 of 49 Robert I have been assigned the fraud case with Drew. Please forward me any additional documents. My number is below and I’m on night work this week 2-12. Thank you Detective Stephen L. Clark#22239 Bensalem Township Criminal Investigation Unit 215-633-3680 Fax 215-633-3684 Please Note that My Email Address has Changed Page 2 of 2 Cherry000006 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 25 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 8:11 AM Subject: Fwd: Monday meetings To: Laura Krimmel ---------- Forwarded message ---------- From: Robert Downey Jr. Date: Thu, Jan 21, 2016 at 4:25 PM Subject: Monday meetings To: john@cherryscaffolding.com, laneb@cherryscaffolding.com, linda@cherryscaffolding.com Cc: angus2012.ca@gmail.com Good afternoon all; We will be meeting every Monday morning @ 9 am (if possible) in the back office. They will be brief with a specific topic each week - afterwards each of you will have an opportunity to discuss anything you feel needs to be shared. This week’s topic: Re-organizing the price list. Page 1 of 2 Cherry000007 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 26 of 49 See you tomorrow. Robert Downey, Jr Estmator Cherry Scaffolding Company, Inc 3933 Rte 13 Philadelphia, PA Office: 215.244.1182 Cell: 215.791.4095 www.Cherryscaffolding.com Page 2 of 2 Cherry000008 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 27 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 8:17 AM Subject: Fwd: Transcript of your chat To: Laura Krimmel ---------- Forwarded message ---------- From: Drew Conley Date: Mon, Feb 1, 2016 at 4:07 PM Subject: Fwd: Transcript of your chat To: Linda Sondesky Sent from my iPhone Begin forwarded message: From: Adobe Date: February 1, 2016 at 4:06:54 PM EST To: "andrew conley" Subject: Transcript of your chat For additional help, reach us at http://helpx.adobe.com/contact.html General Info Chat start time Feb 1, 2016 3:36:23 PM EST Chat end time Feb 1, 2016 4:06:54 PM EST Page 1 of 4 Cherry000009 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 28 of 49 Duration (actual chatting time) 00:30:30 Operator Abhishek Chat Transcript info: Thank you for your patience. While you wait, you can try our community forums where experts are available 24 hours a day, 7 days a week info: You are now chatting with Tshering. Please don’t close the chat window or browser tab since it will end our chat session. Tshering: Hello! Welcome to Adobe Customer Service. Tshering: Is it the first time you are contacting Adobe regarding this issue? andrew conley: No, Tshering: I am reviewing your issue. Please stay online and do not close the chat window or browser in order to ensure our chat session is not interrupted andrew conley: ok Tshering: Could you please help me with your issue? andrew conley: We received a phone call stating we needed to update our payment information. The person that signed up for this is no longer with the company. I was able to get into the account but cannot find out what it is that we are paying for. Tshering: ok Tshering: Are you using subscription or perpetual product? andrew conley: I don't know. I don't know what we are paying for. Can't find out cause they need new payment info Tshering: Are you paying monthly or one time payment? andrew conley: I believe we are paying monthly or every couple of months. Tshering: For this query, I need to transfer this chat to concern support team. Tshering: May I? andrew conley: sure. Tshering: Thank you Tshering: Please stay online while I connect you andrew conley: ok info: Please wait while we connect you to a representative. info: You are now chatting with Abhishek. Please don’t close the chat window or browser tab since it will end our chat session. Abhishek: Hello! Welcome to Adobe Customer Service. Abhishek: Hi Andrew! Abhishek: I am reviewing your issue. Please stay online and do not close the chat window or browser in order to ensure our chat session is not interrupted. andrew conley: fyi...we are paying $26.49/mo andrew conley: Actually, this is Linda, the office manager. Drew is no longer with our company. Abhishek: Okay. Page 2 of 4 Cherry000010 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 29 of 49 Abhishek: I understand that you would like to cancel the subscription under this account. Abhishek: Am I correct? andrew conley: No. At this point I am not trying to cancel anything. I am simply trying to find out what it is that we are paying for andrew conley: If I know what it is and we need it, I will update the payment info and change the account info Abhishek: Okay. Abhishek: I will be glad to check and help you with this issue. andrew conley: ok Abhishek: I have checked and see that you have Acrobat Pro DC subscription (month-to-month) active under your account. Abhishek: In which you are paying US$26.49/month. Abhishek: I see that the renewal for the January month is still pending under your account. andrew conley: yes, we had to close that credit card. Exactly what is Acrobat Pro DC, and is it good for just one computer, or can anyone in the company use it? Abhishek: Acrobat software is used for editing PDF's, creating PDF's and converting the documents from word to excel etc. Abhishek: You can use the software on 2 computers but you cannot access them simultaneously. andrew conley: If we were to cancel, could we re-subscribe if needed? info: Your chat transcript will be sent to drew@cherryscaffolding.com at the end of your chat. Abhishek: Yes, but if you cancel the subscription now you will be charged a cancellation fees of 50% of the remaining months charge in your annual contract. andrew conley: what is our contract term? Abhishek: Your subscription is going to end in 09 Oct 2016. Abhishek: You can cancel the subscription in the last month of your annual contract from your end. andrew conley: Ok. I will update our credit card information in the morning. Where can I see where our contract term is? Abhishek: Once you login to your account, click on manage account then plans and products. Abhishek: There you can view the dates. andrew conley: Ok. That's what I couldn't see since our credit card info wasn't up to date. I'll take care of that in the morning. Thank you for your help. Abhishek: You are welcome. Abhishek: Is there anything else I can help you with? andrew conley: One last question, do we sign into Adobe in order to use it? Abhishek: Yes, you have to launch the Creative Cloud app and sign in with the email drew@cherryscaffolding.com to access the apps. andrew conley: ok. thanks Abhishek: You are welcome. Abhishek: Do you have further question for me? andrew conley: no, that should do it for now. Again, thank you for your assistance Abhishek: My pleasure! Abhishek: You may receive an email that will contain a link to complete an Page 3 of 4 Cherry000011 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 30 of 49 optional survey to provide your feedback on our conversation today. Abhishek: The survey takes less than 2 minutes to complete and I would really appreciate your feedback. Abhishek: Thank you for contacting Adobe. We are available 7 days a week, 24 hours a day. Goodbye! Page 4 of 4 Cherry000012 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 31 of 49 ---------- Forwarded message ---------- From: Christopher A. Beaver, CPA Date: Fri, May 12, 2017 at 9:57 AM Subject: FW: Financial Info - Textura To: "angus2012.ca@gmail.com" Christopher A. Beaver, CPA, CGMA, CITP Shareholder Cantor Novak Beaver & Pike, PC 41 University Drive, Suite 401, Newtown, PA 18940 630 Route 70 West, Cherry Hill, NJ 08002 T (PA) 215.550.2958 | (NJ) 856.281.9015| F 215.550.2959 | C 609.332.5696 E cbeaver@cnbpcpas.com | W http://www.cnbpcpas.com/ ___________________________________________________________________ Confidentiality: The information in this e-mail may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender and delete all copies. Thank you. From: Linda Sondesky [mailto:linda@cherryscaffolding.com] Sent: Wednesday, February 03, 2016 10:02 AM To: Christopher A. Beaver, CPA Subject: Financial Info - Textura I spoke with Danielle at Tutor Perini (the company that wants the pre-qualification thru Textura). She said that if we get a “Sunshine” letter from a bonding company stating that we are bondable, that we would not have to provide all the financial info, etc. Do you know of a bonding company that would do that for us? As far as I know, we have not had to get a bond in the past. Page 1 of 2 Cherry000013 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 32 of 49 When I asked her if we could submit the last 3 years of tax returns in lieu of formal financial statements, she said that our accountant would have to go into Textura, enter the financial data for the past 3 years, then upload the tax returns. The “Sunshine” letter eliminates this need. Linda Sondesky Office Manager Cherry Scaffolding, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” Page 2 of 2 Cherry000014 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 33 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 9:10 AM Subject: Fwd: Andrew To: Laura Krimmel ---------- Forwarded message ---------- From: Clark, Steve Date: Wed, Feb 10, 2016 at 2:45 PM Subject: Andrew To: Linda Sondesky Linda Andrew was arrested this afternoon and was represented by his Attorney, Michael Parlow. Bail was set at $25,000.00 unsecured and he was released. Court date is scheduled for March 15, at 0845 hours. When it gets closer to the date, we can talk about what is going to be needed. Please inform the owner of the company. Thank you Detective Stephen L. Clark#22239 Bensalem Township Criminal Investigation Unit 215-633-3680 Fax 215-633-3684 Page 1 of 1 Cherry000015 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 34 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 8:43 AM Subject: Fwd: Rafael To: Laura Krimmel ---------- Forwarded message ---------- From: Linda Sondesky Date: Fri, Feb 12, 2016 at 12:55 PM Subject: Rafael To: Len Glover FYI…I filed a fraud report with Unemployment regarding Rafael. They will investigate. We won’t really hear anything, though if found to be true, we would then get a credit on our unemployment charges. Enjoy your visit with your mum. Linda Sondesky Office Manager Cherry Scaffolding, Inc Page 1 of 2 Cherry000016 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 35 of 49 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” Page 2 of 2 Cherry000017 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 36 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 8:41 AM Subject: Fwd: 10/1/14 - 10/31/14 SUH To: Laura Krimmel ---------- Forwarded message ---------- From: Linda Sondesky Date: Thu, Feb 25, 2016 at 9:34 AM Subject: 10/1/14 - 10/31/14 SUH To: "Christopher A. Beaver, CPA" Cc: Len Glover Just wanted to let you know that I appealed the assessment for the 10/1/14 to 10/31/14 SUH and just received word that we won the appeal. This is the one where PA and Allegheny taxes were filed rather than PA and Phila. Not bad for the state..only took 2 months for the decision. At least it’s a good one J Linda Sondesky Office Manager Cherry Scaffolding, Inc 3933 Bristol Pike Page 1 of 2 Cherry000018 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 37 of 49 Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” Page 2 of 2 Cherry000019 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 38 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 9:06 AM Subject: Fwd: Possessed phones To: Laura Krimmel ---------- Forwarded message ---------- From: Linda Sondesky Date: Thu, Feb 25, 2016 at 11:39 AM Subject: Possessed phones To: Nicholas Cosmo Hi Nick, Left you a voicemail message. It seems our phones are now possessed. We have them set to day mode, but they continue to change. Sometimes slowly, sometimes scrolling through the different modes very quickly. When that happens our phones do not work. Looked in the book and cannot find how to fix this. Please help. Linda Sondesky Office Manager Page 1 of 2 Cherry000020 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 39 of 49 Cherry Scaffolding, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” Page 2 of 2 Cherry000021 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 40 of 49 From: Linda Sondesky Sent: Friday, February 26, 2016 9:15 AM To: amc@amcworldwide.org Subject: CEF Stucco Can you please update me on the status of the above case? Linda Sondesky Office Manager Cherry Scaffolding, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” Page 2 of 2 Cherry000022 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 41 of 49 Laura Krimmel General Manager Cherry Scaffolding Company, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” ---------- Forwarded message ---------- From: Lisa Potach Date: Fri, May 12, 2017 at 9:05 AM Subject: Fwd: Cherry Scaffolding, Inc. vCEF Stucco To: Laura Krimmel ---------- Forwarded message ---------- From: amc Date: Fri, Feb 26, 2016 at 10:42 AM Subject: Cherry Scaffolding, Inc. vCEF Stucco To: Linda Sondesky Cc: Edward Swanson G o o d m o r n i n g L i n d a, P l e as e b e ad v i s e d the s u m m o n s an d c o m p l ai n thas b e e n p r e p ar e d an d i s o u t f o r s e r v i c e ag ai n s tthi s c o r p o r ate d e b to r . O n c e the d e f e n d an ti s s e r v e d w e w i l l r e c e i v e as i g n e d f o r m atte s ti n g to the s e r v i c e . W e m u s tthe n w ai tf o r ap p r o x i m ate l y 3 0 to 4 5 d ay s b y l aw to g i v e the d e f e n d an t an o p p o r tu n i ty to m ak e an ap p e ar an c e an d d e f e n d thi s l aw s u i t. I f n o ap p e ar an c e i s m ad e w e w i l l the n m ak e am o ti o n f o r s u m m ar y ju d g m e n t an d w e w i l l s u b m i t i tto aJu d g e f o r s i g n atu r e an d s u b m i t i tto the C am d e n C o u n ty C l e r k f o r ad o c k e t n u m b e r . I hav e thi s c as e c o m p l e te l y u n d e r c o n tr o l an d w i s hto as s u r e y o u I f o l l o w i tw e e k l y to m ak e s u r e the r e i s n o thi n g s tan d i n g i n the w ay o f ac hi e v i n g the d e s i r e d r e s u l ts . Re g ar d s , P e te r Yours truly, Peter Romano Senior ManagingPartner CORPORATEOFFICES MAILING ADDRESS ASIAN OPERATIONS . Armstrong,Madison & Chase Armstrong,Madison & Chase Armstrong,Madison & Chase . 375 Park Ave, Suite 2607 19 Spear Road, #108 19 W est Sand Duan Er Huan Road . New York, NY 10152-2600 Ramsey, NJ07446-1223 Cheng De. Si Chuan 610031. China . T:(212)634-6900 T:(201)962-2390 T:028-87790522 . F:(212)634-7474 F:(201)236-2332 F:028-87794265 . amc@ amcworldwide.org amc@ amcworldwide.org amcworldwideasia@ msn.com . www.amcworldwide.org THIS IS A COMMUNICATION FROM A DEBT COLLECTOR. ANY INFORMATION OBTAINED DURING THIS COMMUNICATION W ILL BEUSED FOR THEPURPOSEOF DEBT COLLECTION. This email is intended solely for the person or entity to which it is addressed and may contain confidential and/or privileged information. Any review, dissemination, copying, printing or other use of this email by persons or entities other than the addressee is prohibited. If you have received this email in error, please contact the sender immediately and delete the material from any computer. Page 1 of 2 Cherry000023 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 42 of 49 ---------- Forwarded message ---------- From: Christopher A. Beaver, CPA Date: Fri, May 12, 2017 at 9:57 AM Subject: FW: Costs To: "angus2012.ca@gmail.com" Christopher A. Beaver, CPA, CGMA, CITP Shareholder Cantor Novak Beaver & Pike, PC 41 University Drive, Suite 401, Newtown, PA 18940 630 Route 70 West, Cherry Hill, NJ 08002 T (PA) 215.550.2958 | (NJ) 856.281.9015| F 215.550.2959 | C 609.332.5696 E cbeaver@cnbpcpas.com | W http://www.cnbpcpas.com/ ___________________________________________________________________ Confidentiality: The information in this e-mail may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender and delete all copies. Thank you. From: Linda Sondesky [mailto:linda@cherryscaffolding.com] Sent: Tuesday, March 01, 2016 2:55 PM To: Christopher A. Beaver, CPA Subject: Costs Chris, Could you work up costs including overhead, etc. for the following hourly wage categories. If you do two or so, I can follow the formulas and figure the others out. Page 1 of 2 Cherry000024 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 43 of 49 $15.00, $18.00, $20.00, $21.00, $22.50, $25.00 I am trying to do job costing but cannot unless I know what it is actually costing us per man hour. Thanks so much, Linda Sondesky Office Manager Cherry Scaffolding, Inc 3933 Bristol Pike Bensalem, PA 19020 Office: 215.244.1182 www.Cherryscaffolding.com “Getting you up where you need to be for 30 years” Page 2 of 2 Cherry000025 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 44 of 49 Exhibit 5 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 45 of 49 Cherry000026 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 46 of 49 Exhibit 6 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 47 of 49 Cherry000027 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 48 of 49 Cherry000028 Case 2:16-cv-05667-AB Document 39-1 Filed 05/19/17 Page 49 of 49
