By Sheena Delazio email@example.comStaff Writer WILKES-BARRE – Breaking Benjamin apparently is breaking up.
Don Carey/the Times Leader
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The lead singer of the locally based band Tuesday would neither confirm nor deny claims his band has broken up; however, documents filed in Luzerne County Court sing a different tune. A filing by Benjamin Burnley against bandmates Aaron Fincke and Mark Klepaski on June 6, which claims they breached a contract by making decisions without him about the release of a new recording and remix of their song “Blow Me Away,” says the guitarist and bassist were “dismissed” in May of this year. “Unfortunately, at this time, I can’t comment on anything,” Burnley said. “Not confirming or denying. No comment.” During his brief conversation with The Times Leader and The Weekender, Burnley also would not discuss the legal actions. A call to Fincke was not returned. There have been numerous pages of court filings, including a request for declaratory judgment made by Fincke and Klepaski on July 13 and an email Burnley sent to the other two men. “By email dated May 15, 2011, (Burnley) dismissed (Fincke and Klepaski) from the band for ‘cause’… ,” the June filing by Burnley said. In the June filing, Burnley said the band’s “Blow Me Away” song was written in 2004 by himself with “no contributions” from either Fincke or Klepaski, who are known professionally as Aaron Fink and Mark James. The band released two albums in 2006 and 2009, and a “partnership agreement” was entered into with the three men in January 2009. That agreement, Burnley said, contains an arbitration provision requiring any disputes relating to the agreement be settled through binding arbitration administered by the American Arbitration Association in Luzerne County. On March 10, 2010, Burnley said in the filing, the band made two recordings to release a new version of “Blow Me Away” and a collector’s edition album. In May, Burnley said, Fincke and Klepaski gave Hollywood Records permission to release the “Blow Me Away” single and accompanying album in order to “receive $100,000 out of a new $150,000 offer.” At no time, the filing says, did either Fincke or Klepaski notify Burnley or his representative. Two days later, Fincke and Klepaski were “dismissed,” according to court papers. Burnley requests $1.2 million in monetary damages in the arbitration action. In response, Fincke and Klepaski filed a complaint on July 13 stating they “dispute and strictly deny” the allegations made by Burnley in his June filing. Fincke and Klepaski said that on June 1, 2010, Burnley told them he is “disabled or infirm to the extent that he could no longer perform his duties in connection with performing live concert appearances” and that his “disability or infirmity” terminates the alleged agreement. Because of the alleged termination of the agreement, Fincke and Klepaski said in their filing, the American Arbitration Association in Luzerne County has no jurisdiction over the matter because there is no valid arbitration agreement. The two men asked that Burnley’s arbitration request be stopped and/or dismissed. On July 29, Luzerne County Judge William Amesbury denied Fincke and Klepaski’s request to dismiss the arbitration filing. The band, formed in 2001, is a multi-platinum, modern rock band, based out of Wilkes-Barre. The new “Best Of” album, scheduled for release on Aug. 16, is set to include the new remix of the song "Blow Me Away.” Attorneys for Burnley, Fincke and Klepaski could not be reached for comment. Times Leader and Weekender staff writer, Alan K. Stout, contributed to this report.