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HomeMy WebLinkAbout97-00117 ~ ~ ~, ~~\ , , .3 ~ ~ '" ~ \. ~ '1 ~ ~ , u < \i ;... ~ ~ III ~ ~ ~ ~I t-- \}- .-! ~i v, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. q1- III F 'tL~-:l-,\ : CIVIL ACTION-LAW & EQUITY ~ ~ , RESTART TEMPS, INC" Plaintiff RESTART/DELAWARE VALLEY, INC., JOHN H. CARNEY and NANETTE SCIOLLA CARNEY. Defendanls : JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this "Iii I day of '),:1 ILl<.1 ,-, /_ . 1997, upon consideration of ,I the verified Complaint in Law and Equity in this action and the accompanying Petition for Preliminary Injunctive relief, it is hereby ORDERED that: 1. Defendanls show cause before the Court on / ' ..,/,!< "f"" ,~( .1997, , ,/ 7 Lf at I: ,) () o'c1ock~.m. in Courtroom at (',:: ,', ,I <' : -' ,Pennsylvania, why a preliminary injunction should nol be issued, providing the relief requesled by Plaintiff; and 2. Plainliff cause copies of this Rule to Show Cause, the Complainl in Equity, and the Petition for Injunclive Relief with ils accompanying papers, to be served upon all parties in interest at least 'Z..n days before lhe date of the hearing. --;1 (,L-' /111 / J, RESTART TEMPS, INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ~ v. : NO. : CIVIL ACTION-LAW & EQUITY RESTART/DELAWARE VALLEY, INC., JOHN H. CARNEY and NANEITE SCIOLLA CARNEY, Defendants : JURY TRIAL DEMANDED ORDER AND NOW, lhis day of , 1997, after hearing and on consideration of the Plaintiffs verified Complaint in Equity and Law, Petition for Preliminary Injunclion, and it appearing to the Coun thai immediate and irreparable damage and injury will resull to lhe Plaintiff before the case can be fully heard on its merits if a preliminary injunclion is not issued, it is hereby ORDERED AND DECREED lhat: I. A preliminary injunclion is hereby issued against Defendants enjoining them from operating or doing business on at any place under the name or corporate title of "Restan" and from using any trade or service mark associated therewith; 2. Defendants must refrain from using any materials, correspondence or like items containing or referring to the "Restart" name and mark and from causing or penniuing said name and mark to be listed in any telephone books, olher directories, or trade lists and from using it in connection with their business in any manner whatsoever; 3. Defendants must return to Plaintiff any and all materials including but not limited to books, brochures, computer software, tapes, and any other similar materials related to the implementation, marketing, advertising and training of a "Restart" licensed business; 4. Defendants are enjoined from interfering in any way with the business "- ~ ~ ~ -...J J "J -'- (1) ........, j- v; I () ~ 0 lilt ~ ' ,. ..-1 - L'. ...: " ',) L" C, C'1 (... I \,J Lj ,,, .> L. : ,I, '"L '" J ,-'" ,- . ~ ~. (~ ) ~ ~ , ... i '6- i 11. ("ll Ill! ,; vi ( ,. ~ ~ 7 0' I" rJ 0- - L . .-~ <n It '.J j r ,;\ LO :r (1 @ t/) lli "T -1 - - '. i ~ il_ cL. - ~ J! I. r" c:; C.' <C. ,J >< f-< ~H p..::> 0' Z -~ o ~O"" ,.,.U 0 o ~~ UOjO g,j,~ 0:: ~ f-<~ZO 0::P'l0 8~~~ UUUH ~o:: ~ . f-< :r::Ul...:l f-<~H>< ~;> 0:: . Z...:IH::>O Hp..U.,Z '. .... .... "rl .~ U!:: Z.rl Hm .... -p.. Ul ~ ~ f-< ~ f-< Ul ~ ,. -'0 ><!::-Ul ~m><~ ~><5@~ :>5@~] O::UQJ ~()~"Qj ~ ...:10 ::: "...J j:r::~ ~ZU > O:r:: Ul .....0 f-<"~ ~ -I:: !;;U~ ~~Z f-< Z H j ~ o U LAWOFFICI~~ ;\IIRIN & ,JA(,OJ\SO:\: HI:"iO IlHUn' ...lluJ:r II AIUtI 'Ill} IU i, I'^ ~?J il..'i:!()(1 0171 ~hl.l.'il.'i !fl u !E o ~ z ~ ~ ~ lJ:l1;j":' O~;:: '" ~~~ : ~ "ci ;g o!:l "" ;:: ~~~ ~ -" 00" ... ~ ..... .. IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA I ~ RESTART TEMPS, INC.. Plaintiff NO. q~ - \ \ r1 EC\J'"1 v. CIVIL ACTION. LAW & EQUITY RESTART/DELAWARE VALLEY, INC., JOlIN H. CARNEY and NANETIE SCIOLLA CARNEY. Defendants 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 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 plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TIllS 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 Lawyer Referral Service Cumberland County Courthouse Carlisle, P A 17013 (717) 240-6200 Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene vienta (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en fonna escrita sus defensas 0 sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se difienda, la corte tomara medidas y puede entrar una orden contra usted sin previo ayiso 0 notification y por cualquier queja 0 alivio que es pedido en la peticion de demanda, Usted puede perder dinero 0 sus propiedades 0 ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 business at 1787 Sentry Park West, Suite One, Building 18, Blue Bell, Montgomery Counly, Pennsylvania 19422. 5. Defendants, Nanette Sciolla Carney and John H. Carney, were husband and wife and officers of Restart/Delaware Valley, Inc. at all times recited herein. COUNT I - BREACH OF CONTRACT 6. The avennents of Paragraphs One (1) through Five (5) are incorporated herein by reference and made a part hereof, 7. On or about January IS, 1992, Defendants entered inlo an express conlract/agreemenl with Restart Temps, Inc. as is more fully set forth in Plaintiff's License Agreement, a copy of which is attached hereto, made a part hereto, and marked Exhibil "A", 8, The con1ract provided that the initial tenn of lhe Agreement would be for three (3) years from the first day of operation and the licensee would be charged at the prevailing rates althe time the services are requested. 9. The total amount for such licensing opportunity and available services provided by Plaintiff to Defendanls was Ten Thousand Dollars ($10,000.00) for three (3) years. 10. Pursuant to the tenns of the Agreement, Plaintiff provided to Defendants services for slarting up a Restart licensee business including but not limited to: operating procedures; advertising and brochures; sales, marketing and implementalion consulling; and related training, as well as the right to use the Plaintiff's service mark, "Restart Temps." 11. The amount charged for lhe licensing and the related services and materials as set forth in Exhibit "A" represent fair, reasonable and proper amounts. 12. Plaintiff Restart Temps, Inc. fee for a licensing opportunity and other related services was payable after the first full year of lhe licensee's business operation. I I ~ 13. Defendanls' current unpaid balance owed to Plaintiff Reslan Temps, Inc. is the sum of Ten Thousand Dollars ($10,000.00), 14. Defendants have neglected and refused to pay the oUlslanding balance of lhe accounl. IS, Plaintiff Restan Temps, Inc. has continued to make periodic demands 10 Defendanls for payment of the unpaid balance until the present time. 16. Plaintiff Restan Temps, Inc. has proposed payment plans for purposes of facilitaling the Defendants payment of the amount due and owing. 17. All the services and other stan up materials have been provided to the Defendanls pursuant to the panies Agreement and Plaintiff Restan Temps, Inc. has no further obligation to the Defendanls. WHEREFORE, Plaintiff Reslan Temps. Inc., prays for judgment in the amount of Ten Thousand Dollars ($10,000.00) plus costs and interest althe legal rate. COUNT II - VIOLATION OF IMPLIED CONTRACT 18. The avennents of Paragraphs One (I) through Seventeen (17) are incorporated herein by reference and made a pan hereof. 19. From June 18, 1991 through January IS, 1992, Defendants mel with lhe President of Restan Temps, Inc., Charles Brockman, for purposes of obtaining a licensing arrangemen1, a copy of which is attached hereto and made a pan hereof, and marked as Exhibil "A". 20. The Agreement reached by the parties provided that the initialtenn of lhe agreemenl would be lhree (3) years from the firsl day of operalion and the licensee would be charged at the prevailing rates, 21. The total amount for such licensing Agreement and available services provided by Plainliff 10 Defendan1s was Ten Thousand Dollars ($10,000.00) for three (3) years, 22. Pursuanl10 lhe tenns of the Licensing Agreement, Plaintiff proYided to Defendants services relating 10 the initial starting of a Restart licensee business including but not Iimiled to: operaling procedures; advertising and brochures; sales, marketing and implementation consulling; and related training. 23, Plainliff Restart Temps, Inc. fee for licensing and the corresponding services was to be payable after the first full year of the licensee's operation. 24. Defendants' current unpaid balance owed 10 Plaintiff Restart Temps, Inc. is the sum of Ten Thousand Dollars ($10,000.00). 25, Defendanls have neglecled and refused to pay the outslanding balance. 26. Plaintiff Restart Temps, Inc. has continued to make periodic demands to Defendants for payment of the unpaid balance until the present time. 27. Plaintiff Restart Temps, Inc, has proposed payment plans for purposes of facilitating the Defendants payment of the amount due and owing. 28. Plaintiff provided necessary and reasonable services and assistance to the Defendants during the first three (3) years of the licensing Agreement. 29, The charges for the licensing Agreement and the services provided as part of the Agreement represent fair, reasonable and proper amount for said services. 30. Defendants' obligation to Plain1iff is based upon an implied conlract based upon 38. Plaintiff Reslart Temps, Inc" is in the business of proyiding lemporary employmenl opportunities to individuals, particularly older persons, who are in need of employment. 39. Restart Temps, Inc. has been carrying on business under said name and service marks for eight (8) years in the Commonwealth of Pennsylvania. 40, Plaintiff acquired the trademark name of "Restart" in good faith. 41. Plaintiff Restart Temps, Inc. and Defendanls entered inlo a licensing Agreement whereby the Defendants would use lhe "Restart" name and related startup materials for purposes of establishing lheir own temporary employment business. 42, Defendants obtained a license from lhe Plaintiff for the territory region consisting of lhe greater Philadelphia Metropolitan and Delaware area. 43. The tenn of this licensing Agreement was to be for three (3) years and the cost of said license was Ten Thousand Dollars ($10,000.00). 44. To dale, Defendants have not paid their licensing fee lhat is due and owing to the Plaintiff. 45, On or about January 15, 1994, the licensing Agreement between lhe Plaintiff and Defendants expired. 46. Plaintiff has notified the Defendants of its intention that lhe Agreement will not be renewed as a result of Defendants' failure to comply with the contractual obligalions under the agreement, a copy of which is attached hereto and made a part hereof and marked as Exhibit "B". 47. Plaintiff has notified Defendants to cease and desist from using the name "ReSlart" or any derivalive thereof and any similar service mark, a copy of which is atlached herelo and made a part hereof and marked as Exhibit "B". 48, Defendanls, knowing that their licensing agreement has expired, are continuing 10 carry on business while using the "Restart" name and provided materials to others withoUl Plaintiff's pennission or consent. 49. Defendants, well knowing the aforesaid, and intending 10 deceive or pass themselyes off as being associated with Plainliff by lheir unauthorized use of the "Restart" name, are fraudulently marketing their services as those of lhe Plaintiff by false representation. 50. The Defendants are knowingly and falsely representing themselves and lhe services provided therein to the general public, whereby passing off lheir services as those of the Plaintiff. 5!. The name "Reslart" is recognized by the public as identifying services associated with the Plaintiff and are distinguishable from those of olhers. 52. Through such fraudulent conduct and practices, lhe Defendants are deceiving the general public as to the services provided allegedly under lhe Reslart name. WHEREFORE, Plaintiff Restart Temps. Inc., prays lhatthis Honorable Court Order: (a) lhat Defendants cease and desist from using the name or corporate litle of "Reslart" or similar trade mark; (b) that pending this suit, the Defendants be specially and thereafter perpetually enjoined from operating or exposing or holding out to the general public under lhe name or n corporate title of "Restart"; (c) that Defendants be ordered to account to Plainliff for the proceeds of any sale or business transaction which occurred under the "Restart" name or mark, and l:lat Defendants pay to Plainliff what, upon such accounting, shall appear 10 be due to Plaintiff. COUNT IV - INJUNCTIVE RELIEF 53. The avennents of Paragraphs One (I) through Fifty Two (52) are incorporated herein by reference and made a part hereto. 54. Plaintiff avers that as a result of Defendants continual carrying on of business and their unauthorized public representation as 1I Restart temporary employment licensee, an injunction is necessary to prevent immediate hann which can not be compensated by damages. 55. Plaintiff's believes and lherefore avers that greater injury will result to the Plaintiff by refusing such an injunction than by gran1ing it. 56. Plaintiff avers lhat through lhe granting of the injunction, the parties will be restored to their original status as il existed immediately prior to the Agreement of the parties as set forth herein. 57, Plaintiff avers that through lhe Defendants conduct of operating a business while using the unauthorized and unlicensed "Restart" name, the injunction requested is reasonably suited to abate the Defendant's actionable conduct. 58. Plaintiff avers that an order pursuant to Pa.R.C.P. No. 1531 is required to enjoin Defendants preliminarily and then pennanently from carrying on or doing business or in any way utilizing the name or mark of "Restart. " 59. Plaintiff also believes and lherefore avers that an order pursuant to Pa.R.C.P. No. 1531 is needed to preliminarily and then pennanently enjoin Defendants from using any materials or like items containing the "Restart" name and mark and from interfering in any ~ way wilh the business relations of the Plainliff, Restart Temps, Inc. or any of ilS licenses, ,:' WHEREFORE, Plainliff Restart Temps. Inc., requests that this Court granl relief as follows: (a) Enjoin the Defendants, preliminary Unlil hearing, and pennanently thereafter from operaling or doing business or carrying on at any place under the name or corporate title of "Restart"; (b) Directing the Defendants to refrain from using any malerials, correspondence or like items containing or referring 10 the name of "Restart" and from causing or pennitting it in connection with their business in any manner whatsoever; said name to be listed in any telephone books, other directories, or lrade IislS and from using (c) Awarding Plaintiffs cosls incurred as a result of DefendanlS wrongful acl; (d) Providing for such other and further relief as the Court deems just and proper, Respectfully submitted, Dated:R );;1lt.'!:?1/9fJ 8150 Derry Sire Harrisburg, PAl 7 Il 1-5260 (717) 561-1515 Leslie D. Jacobs n Esquire Attorney ID # 5 3 Attorney for Pia iff LICENSB AGRBBMBNT This agreement describes the relatlonshlp be:ween RESTART TEMPS,INC. and RESTART/Delaware Valley. It 1S understood b~ both parties that the lntent of thls agree~en: 1S to provl~e services to allow implementation and operatlon of a llcensed organization which represents the bus1ness concepts and obJectives of RESTART TEMPS, INC., particularly the emphas1s on providing temporary empleyment opportun1tles to older Americans, I. Agreement Term a, Initial Agreement- three years frOM flrst day of operation. Services are described in Section VI. b, Extended Agreement- after the initial period the licensee may use the training and consulting services of RESTART TEMPS, INC. at the rates prevailing at the time the service is requested. If the licensee desires, RESTART TEMPS, INC, w:ll also provide services on a retainer basis at rates which w111 be determined by agreement of both parties. II.Geographical Territory a, Licensee is granted exclusive operating rights to the geographical territory described in (d) below. b. primary licensee business locatlon requlres prior approval by RESTART TEMPS, INC. c, Establishment of licensee branches within the defined geographical territory is at the discretion of the licensee, d. Territory descrlption: Greater Philadelphla and South- ern New Jersey marketlng statiscal area. III.Resale or Assignment a, Assignment of this agreement for any reason requires approval of RESTART TEMPS,INC. b, RESTART TEMPS, INC. retains the right of first refusal in the event of resale or assignment of thls agreement, IV.Trade name, Trademarks, Software licenses a. The use of trade name, trademarks, and software licenses is restricted to the geographical territory described in section II,d. b. Trade name, trademarks, and software licenses may be used by branch offlces within the defined geographical territory. c, Competitlon wlth other llcensees of RES~ART TEMPS,INC. within the def1ned geographlcal terrltory lS not considered an infringement of the excluslve rlghts of the licensee provided there IS no violation of the terms of th1s agreement, EXHIBIT "A" I V,Licensee Participation a, Licensee may participate in another type of buslness provided it does not compete w:th the temp busi~ess. b, Licensee agrees to dlrectly participate in the operation of the licensed business at least 50\ of the work week (Monday to Fr1day) for the first three years, c. RESTART TEMPS,INC. may ask for llcensee partlclpatlon in implement1ng other llcensees or 1n franchlsl~g. F~~5 paid by RESTART TEMPS,INC. wlll be dependent on the amount and type of part1c1pat1on. Rates w:ll be mutually agreed upon prior to licensee participation. VI, Available Services a, Operating procedures- documentation to provlde a gUlde to daily operations, lncludlng: For:ns; Clerical Proced- ures; Accounting Procedures; Personnel Counselln; Pro- cedures;Filing and Office Material Requirements;Office Equipment Requirements;Other Applicable Materials. b. Computer and Software specifications to process: Personnel Records, Payroll, Sales and Analysis Report- ing and Billlng; Accounting, including Accounts Rec- eivable and F1nancial Reportlng; Flnanc1al reports - Trial Balance, Balance Sheets, P&L and General Ledger. c, Advertising and Brochures, including: samples of bro- chures for clients and employees; sample advertising campaigns; programs to meet marketplace and territory characteristics and idiosyncrocies; and consulting services to insure the successful implementation of the RESTART TEMPS philosophy in the Delaware valley. d. Sales and Marketlng Consulting will be prOVided by representatives of RESTART TEMPS,INC. with experience in marketing, sales and placement, e, Implementation Assistance will be prOVided by repre- sentat1ves of RESTART TEMPS,INC. with experience in the day-to-day operations and implementatlon phases, f. Post-Implementation Tralnlng and consult:ng prov1ded to meet licensee needs and requests. g, Fees for all services descr1bed in thls sectlon are dependent upon the level of expertise required, time spent and expenses. Details specified in Attachment A, For: RESTART TEMPS, INC, For:RESTART/DELAWARE VALLEY ~d It. '..,._ c~eXR,~an, presidet Date:7"( I IS; /tfz, Nanette SClolla Carney, CEO ~cnn H. car~ey, presldent Date: f I !;, I I t f ATTACHMENT A 1. Services A. Operating Procedures B. Computer a~d Sof~ware A~plicati~~s C. Advercisi~g and Brochures D. Sales and Marketing Consulting E. Impleme~tation Consulting F. Post !m~lementation Trai~i~g a~d Consulting ($lO,OOO.OOl for three years fer t L ! I f II. Fees A. Fixed Fee of Ten Thousand Dollars services provided under paragraphs A, B, C, 0, and E. payable after the first full year of operation. B. Hourly ra~e for.. $40.00 plus e:<penses. , .. ({) i L. I 11.1' V; , '!.. I , ("'( ,- I' j.~. U, I C.') { ~ ", ) II,; I , . k; r_,' ,:tJ L..; ; k _:~ I, I" , U c.... ..J . . ~ ~ ~~ o ~ ~ ~ 'll ~ ~ ~ Iii :;; z ~ IJ'l ~ ~ ~ Z ~ 5 ~ ~ 0 . ~ I: :; ~ ::.t:: -< ~ c ... ;J', Z j iii is z :5 ';jIU:HI":~ IiCTUW, ' UU'I UI' (.UUNTY r;,~:;I', 1/11: /')'11, m~l1'l F r:IIHHUIHIf:AI,TII IJF !'UIIl'WLVANIA: CIIIJN ry UF CUHllr:rn.AND i , " Ilr::; J'Arn TI':MI':j INC V~i. RI-:STM1T 1I'JI,:I.AWA[lr: V AI.I.EY [tiC 11. ThQmus Kli,ne , Sheriff, IIho heing duly slIorn according and inquiry for the 1I1thin to lall, says, that he made a diligent search named defendant, to IIi t: CAIlNr:Y NANI':Tn: :;CIUI.I.A but lias unable to locate Her in h1S bai11111ck. lie therefore deput1:ed th~ sheriff of MUNTliIJMI';RY CUUNTY County, Pennsylvunia. to serve the w1thin CUMPI.AINT - I::I,JIJITY Un February Jrd, I ':)97 the attached return from , thes 0111ce lias 1n rece1pt of MONTliUMEHY CUIJNTY County, Pennaylvan1<l. Sher if f' El Cost.s: :;n answers: DOI;ki?t. i.ng C1ut of County :';u,"charge h.II)0 ,00 2,00 H. I homaa I\l~nt>, :"l1er111 "-!;\, 11)11) MlIlIN ANI> JACOllS 02/03/1997 ~-jw.\rll .:1n.J SUb:il;X-l.bed to hcforl} me? \ CI 'II u" " - , duy A, [I, of Lt..............) t, II , ~, ,': ~ "'. " n \ "i-'- 1...... J II'lA....tu..... A......'J .It:; /1 rulhonotbr( {, SHERIFF'S RETURN PROTHONOTARY II :1'-191 DEFENDANT JOHN H. CARNEY, NANElTE SCIOLLA CARNEY AND RESTART/DELA WARE VALLEY. DOCUMENT SERVED :CIVIL INDIVIDUAL SERVED :TERRY MCBRIDE RELATIONSHIP TO DEFENDANT _: I'ERSON IN CHAIUiE DATE AND I'REVAI LING T1ME_:JANUARY 16, 1997@ 10:25 LOCATION : 1787 SENTRY PARK WEST, SUITE ONE, BLD. 18, BLUE BELL,I'A THE ABOVE DOCUMENT WAS SERVED ON THE DEFENDANT AS PER INFORMATION LISTED ABOVE IN THE COUNTY OF MONTGOMERY, COMMONWEALTH OF PENNSYL VANIA, AFFIRMED AND SUBSCRIBED BEFORE ME ON THIS DAY. January 28,1997 SO ANSWERS, '1uud 'P. .t.a~ FRANK p, LALLEY SHERIFF OF MONTGOMERY \, cJI( Q,c t-v-, -tUJ' Q({'\ ,It (I' NOTARY PUBLIC ,."'... .' I " ',./ ...,.,.' i / .' I,.. (~./.\ I ! ",' . .II /. / ." .' ,// ) NOTAnlAL SEAL IIELENE FRIED~!';,~, Not.'-\, Public Ncrrlstown. Mnnlqomcrv I.,;C)., PA Mv Commlulon (~piri?l Ap'l'il 1. 2000 BY W ALZ~K DEPUTY SHERIFF Ilp~ldrt Temps, I nc. .-<: "--. John II. Carney ;;0. 97-117 Ci~Jl Term " -----r .--- ;tow, Jan. 10, 1997 :9_ !. S:~"::: O~ C0G::==..!..)_'D CO~;';':Yt ?..~ C:I :.=--=:y e:::-.:::::: ~ S:=E oi Montgomery C~c.:::r ::) "--'''. ----- ~ ',V:::, ~ =t:=.:""-:l ::...:-! -....- - U~ -,- ....~_.. :.::: :--..::::. ..:i. ~ ':1..:_":':- ..--. ~a/ //# r ,,~:>__..r< f~~ . S:e-~ :t C~e-..:1:ci C.:u::y, ?:.. "-=d -Jo ,. - . _~ 2.71.... or :::~:.-nc::: ~ow, ~~ -- o'.:!cc 'or.. .-- --'-- .-- wi.~:., '~?=a -. '=:' :..:.::,.::_! ::J .. ~-:": ci =:: =='.='-=1 .' :.::.c: = ~::vr.l :0 :.::.: ---..--- ----.. ..--.--- -............- So ~-w=-... ....-... ci C:l1.:':':Y, ?:.. CC~l..J .. ,. =::.:::.3_=:'::: 1~_ s~v;:c:: ~!:!2..'.G =: s 5w::: .=C! :..::-.-.::e:: bC'::: A.: : ~.-\ "y 7"': -------. s ._ 0--, 1:1 ....,:. ,,- (Jputdrt Temps, I He . 'is. Nanette Sciolla Carney )jow, Jan. 10 . 1997 ::.=--=r c=7":'= '-. ~~.:: oi ~ ~ . . .....-... -....- ---"" - 1t ~ . . =~==--:l ;;ow: :.=: wi":":.., ':;:<:n ~:: =:1 . .. :'::'=r'"'-! ~ z. ::..:::c. _"r'"_ C:w:1 ~ 5o..v:::: =c: r.;:-.-;d === .. .. ==~_:'::''7'::: ._ .-J, :10. 0"7-'17 Cju;l ::_- 'T'grm ----r :9_ !. s:~~: 0:: C~G:::'=':"}_'i":) CO:"~':"Y. ?:L. :::J MontClomerv -.- ...-:,-. :.::i ~.:k ~i C.:c::::r :~ ::::-:-.::.:: =.:.s '.V:::., :.::.: ":1..:_-:= ....0..-_. rfJ~-.r~~~ ~e:-~ :t C:=::e:-...1:d C..c:.:y, ?:.. _0.5d2.vit Or 5o:::-ri~ 19_ ~~ 0..1....:.. . --- "t l:-'.-==' ..._:-: c: -.. ::-=:-=-..1 :=.: .------ ...--..--.... :.~:===:. So :L::...-w:'".... ~-;...-;:= ci C.:)t:':.:Y, ?:.. CCSTI 52.." l: c:: ~GL:::.'.G:::' .; A; : w..lA '.77 __J-----. s TO THE HEREIN PLAINTIFF, YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HER~ OR JUDGEMENT BY NON PROS , ( ri~( ;~TtRe AG~I:S~.~~~. obert J. Kerns, Esqu re Kristen M. Zollers, Esquire Attorney for Defendants RESTART TEMPS, INC., Plaintiff . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-117 RESTART/DELAWARE VALLEY, INC.,: JOHN H. CARNEY and NANETTE : SCIOLLA CARNEY, : Defendants CIVIL ACTION-LAW & EQUITY JURY TRIAL DEMANDED ANSWER. NEW MATTER AND COUNTERCLAIM 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. COUNT I - BREACH OF CONTRACT 6. The averments of Defendants' New Matter and Counterclaim are incorporated herein by reference as though fully set forth at length. 7. Denied. It is specifically denied that on or about January 15, 1992, Defendants entered into an express contract/agreement with Restart Temps, Inc. By way of further answer, the document attached to Plaintiff's Complaint as Exhibit I I t "A" speaks for itself. 8. Denied. It is specifically denied that the alleged contract provided that the initial term of the alleged Agreement would be for three (3) years from the first day of operation, and the licensee would be charged at the prevailing rates at the time the services are requested. By way of further answer, no contract existed between Plaintiff and Defendants, express or otherwise. 9. Denied. It is specifically denied that the total amount for such alleged licensing opportunity and available services provided by Plaintiff to Defendants was Ten Thousand Dollars ($10,000.00) for three (3) years. By way of further answer, at all relevant times hereto, Plaitniff and Defendants never discussed any amount of money for any licensing opportunity and Defendants were never provided with the document attached to Plaintiff's Complaint as Exhibit "A" entitled Attachment "A". 10. Denied. It is specifically denied that pursuant to the terms of the alleged Agreement, Plaintiff provided to Defendants services for starting up a Restart licensee business including but not limited to: operating procedures; advertising and brochures; sales, marketing and implementation consulting; and related training, as well as the right to use the Plaintiff's service mark, "Restart Temps". By way of further answer, Plaintiff provided Defendants only with brochures and only after Defendants agreed to use said brochures as a favor to a friend of Plaintiff in the printing business. Furthermore, due to errors in the brochures provided to Defendants by Plaintiff, Defendants had to create their 2 By way of still further answer, Defendants have never used the at all times service mark own brochures. relevant hereto, "Restart Temps". 11. Denied. Paragraph 11 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 11 and therefore demand strict proof thereof at time of trial. 12. Denied. It is specificallY denied that Plaintiff Restart Temps, Inc. alleged fee for a licensing opportunity and other related services was payable after the first full year of the licensee's business operation. By way of further answer, at all relevant times hereto, Plaintiff and Defendants never discussed any amount of money for any licensing opportunity and Defendants were never provided with the document attached to Plaintiff'S complaint as Exhibit "A" entitled Attachment "A". 13. Denied. It is specifically denied that Defendants' alleged current unpaid balance owed to plaintiff Restart Temps, Inc. is the sum of Ten Thousand Dollars ($10,000.00). By way of further answer, there exists no current unpaid balance owed to Plaintiff Restart Temps, Inc. by Defendants. 14. Denied. It is specifically denied that Defendants have neglected and refused to pay the alleged outstanding balance of the account since there exists no outstanding balance. 15. Denied. It is specifically denied that plaintiff Restart Temps, Inc. has continued to make periodic demands to Defendants 3 for payment of the alleged unpaid balance until the present time. 16. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 16 and therefore demand strict proof thereof at time of trial. 17. Denied. It is specifically denied that all the services and other start up materials have been provided to the Defendants pursuant to the parties' alleged Agreement and Plaintiff has no further obligation to the Defendants. By way of further answer, Defendant New Matter and Counterclaim are incorporated herein by reference as though fully set forth at length. COUNT II - VIOLATION OF IMPLIED CONTRACT 18. The averments of Defendants' New Matter and Counterclaim are incorporated herein by reference as though fully set forth at length. 19. Denied. It is specifically denied that from June 18, 1991 through January 15, 1992, Defendants met with the President of Restart Temps, Inc., Charles Brochman, for purposes of obtaining an alleged licensing arrangement. By way of further answer, Defendants met with Charles Brochman for purposes of discussing the concept of opening a business similar to Restart Temps, Inc. in the Greater Philadelphia Metropolitan and South Jersey areas in order to expand the "Restart" name. 20. Denied. It is specifically denied that the alleged Agreement reached by the parties provided that the initial term of the Agreement would be three years from the first day of operation, 4 and the licensee would be charged at the prevailing rates. 21. Denied. It is specifically denied that the total amount for such alleged licensing opportunity and available services provided by Plaintiff to Defendants was Ten Thousand Dollars ($10,000.00) for three (3) years. By way of further answer, at all relevant times hereto, plaitniff and Defendants never discussed any amount of money for any licensing opportunity and Defendants were never provided with the document attached to Plaintiff's Complaint as Exhibit "A" entitled Attachment "A". 22. Denied. It is specifically denied that pursuant to the terms of the alleged Agreement, Plaintiff provided to Defendants services for starting up a Restart licensee business including but not limited to: operating procedures; advertising and brochures; sales; marketing and implementation consulting; and related training, as well as the right to use the Plaintiff's service mark, "Restart Temps". By way of further answer, Plaintiff provided to Defendants only with brochures and only after Defendants agreed to use said brochures as a favor to a friend of Plaintiff in the printing business. Furthermore, due to errors in the brochures provided to Defendants by Plaintiff, Defendants had to create their own brochures. By way of still further answer, at all times relevant hereto, Defendants have never used the service mark "Restart Temps". 23. Denied. It is specifically denied that Plaintiff Restart Temps, Inc.'s alleged fee for a licensing opportunity and other related services was payable after the first full year of the 5 licensee's business operation. By way of further answer, at all relevant times hereto, Plaintiff and Defendants never discussed any amount of money for any licensing opportunity and Defendants wsre never provided with the document attached to Plaintiff's Complaint as Exhibit "A" entitled Attachment "A". 24. Denied. It is specifically denied that Defendants' alleged current unpaid balance owed to Plaintiff Restart Temps, Inc. is the sum of Ten Thousand Dollars ($10,000.00). By way of further answer, there exists no current unpaid balance owed to Plaintiff Restart Temps, Inc. by Defendants. 25. Denied. It is specifically denied that Defendants have neglected and refused to pay the alleged outstanding balance of the account since there exists no outstanding balance. 26. Denied. It is specifically denied that Plaintiff Restart Temps, Inc. has continued to make periodic demands to Defendants for payment of the alleged unpaid balance until the present time. 27. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 27 and therefore demand strict proof thereof at time of trial. 28. Denied. It is specifically denied that Plaintiff provided alleged necessary and reasonable services and assistance to the Defendants during the first three years of the alleged licensing agreement. By way of further answer, at all times relevant hereto, Plaintiff provided no necessary and reasonable services and assistance to Defendants. 6 29. Denied. Paragraph 29 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 29 and therefore demand strict proof thereof at time of trial. 30. Denied. Paragraph 30 contains conclusions of fact and law which require no responsive pleading. By way of further answer, it is specifically denied that Exhibit "A" attached to Plaintiff's Complaint is a correct copy of the terms and conditions agreed upon by the parties. 31. Denied. Paragraph 31 contains conclusions of fact and law which require no responsive pleading. By way of further answer, it is specifically denied that Defendants agreed to pay a license fee. 32. Denied. It is specifically denied that Defendants have taken and used the alleged license and services and assistance rendered by the Plaintiff without having paid the fair and reasonable amount for the services herein. 33. Denied. It is specifically denied that Defendants have held themselves out to the general public as a licensee of Restart Temps, Inc. without having paid the agreed licensing fee. 34. Denied. It is specifically denied that Defendants have relied upon any alleged contract and other related Restart information including a business plan, a two-year pro forma and personal statement for purposes of obtaining a line of credit with a financial institution. By way of further answer, any information 7 provided to a financial institution for purposes of obtaining a line of credit was Defendants' information alone. 35. Denied. Paragraph 35 contains conclusions of fact and law which require no responsive pleading. By way of further answer, no contract exists, implied or otherwise, between Plaintiff and Defendants. 3f. Denied. It is specifically denied that all the services and other start up materials have been provided to the Defendants pursuant to the parties' alleged Agreement and Plaintiff has no further obligation to the Defendants. By way of further answer, Defendant's New Matter and Counterclaim are incorporated herein by reference as though fully set forth at length. COUNT III - UNFAIR COMPETITION; COMMON LAW TRADEMARK INFRINGEMENT 37. The averments of Defendants' New Matter and Counterclaim are incorporated herein by reference as though fully set forth at length. 38. Admitted. 39. Denied. Defendants are without knowledge or information sufficient to form a belief as to the averments contained in paragraph 39 and therefore demand strict proof thereof at time of trial. 40. Denied. Paragraph 40 contains conclusions of law which require no responsive pleading. 41. Denied. It is specifically denied that Plaintiff Restart Temps, Inc. and Defendants entered into an alleged licensing 8 agreement whereby the Defendants would use the "Restart" name and related start up materials for purposes of establishing their own temporary employment business. 42. Denied. It is specifically denied that Defendants obtained an alleged license from the Plaintiff for the territory region consisting of the Greater Philadelphia Metropolitan and Delaware area. By way of further answer, Defendants operate their business in the territory region consisting of the Greater Philadelphia Metropolitan and South Jersey areas. 43. Denied. It is specifically denied that the term of the alleged licensing agreement was to be for three (3) years and the cost of said alleged license was Ten Thousand Dollars $10,000.00. By way of further answer, at all relevant times hereto, Plaintiff and Defendants never discussed any amount of money for any licensing opportunity and Defendants were never provided with the document attached to Plaintiff's Complaint as Exhibit "A" entitled Attachment "A". 44. Admitted in part; denied in part. It is admitted only that Defendants have not paid a fee to Plaintiff. It is specifically denied that an alleged licensing fee is due and owing to the Plaintiff. 45. Denied. It is specifically denied that on or about January 15, 1994, the alleged licensing agreement between the Plaintiff and Defendants expired since there exists no licensing agreement between the Plaintiff and Defendants. 46. Denied. The letter attached to Plaintiff's Complaint as 9 Exhibit "B" speaks for itself. 47. Denied. The letter attached to Plaintiff's complaint as Exhibit "B" speaks for itself. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A". 48. Denied. It is specifically denied that Defendants, knowing that the alleged licensing agreement has expired, are continuing to carryon business while using the "Restart" name and provided materials to others without Plaintiff's permission or consent. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A". 49. Denied. Paragraph 49 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A". 50. Denied. Paragraph 50 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A". 51. Admitted in part; denied in part. It is admitted only that the name "Restart" is recognized by the public as identifying 10 services associated with the Plaintiff. It is specifically denied that said services are distinguishable from those of others. 52. Denied. Paragraph 52 contains conclusions of fact and , f " law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a Stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A". COUNT IV - INJUNCTIVE RELIEF 53. The averments of Defendants' New Matter and Counterclaim are incorporated herein by reference ~s though fully set forth at length. 54. Denied. Paragraph 54 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a Stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A", thereby rendering Plaintiff's request for injunctive relief moot. 55. Denied. Paragraph 55 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A", thereby rendering Plaintiff's request for injunctive relief moot. 56. Denied. Paragraph 57 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the 11 name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A" I thereby I. I rendering Plaintiff's request for injunctive relief moot. 57. Denied. Paragraph 57 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A", thereby rendering Plaintiff's request for injunctive relief moot. 58. Denied. Paragraph 58 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A", thereby rendering Plaintiff's request for injunctive relief moot. 59. Denied. Paragraph 59 contains conclusions of fact and law which require no responsive pleading. By way of further answer, Defendants have agreed to cease and desist from using the name "Restart" pursuant to a stipulation, a copy of which is attached hereto and incorporated herein as Exhibit "A", thereby rendering Plaintiff's request for injunctive relief moot. NEW MATTER 60. Paragraphs 1 through 59 of Defendants' Answer are incorporated herein by reference as though fully set forth at length. 61. Plaintiff's Complaint and each of its Counts fails to 12 state a cause of action upon which relief can be granted. 62. Plaintiff's claims are barred by accord and satisfaction. 63. Plaintiff's claims are barred by estoppel. 64. Plaintiff's claims are barred by the failure of consideration. 65. Plaintiff's claims are barred by fraud. 66. Plaintiff's claims are barred by laches. 67. Plaintiff's claims are barred by the statute of frauds. 68. Plaintiff's claims are barred by the statute of limitations. 69. Plaintiff's claims are barred by the doctrine of unclean hands. 70. Plaintiff's action against Defendants is without basis and fact and has been brought vexatiously and in bad faith. Therefore, Defendants are entitled to attorney's fees and costs in defending this a~tion under the common law and 42 Pa. C.S.A. 2503. WHEREFORE, Defendants demand judgment in their favor and against Plaintiff together with attorney's fees, costs, and such other and further relief as this Court may deem just. COUNTERCLAIM COUNT I 71. Paragraphs 1 through 70 of Defendants' Answer and New Matter are incorporated herein by reference as though fully set forth at length. 72. In or about 1992, Charles Brochman of Plaintiff, Restart Temps, Inc., solicited and requestp.d Defendants to expand "Restart" 13 name recognition into the Greater Philadelphia Metropolitan and South Jersey areas. 73. If any agreement existed between Plaintiff and Defendants, it was such that the Defendants would expand "Restart" name recognition in the Greater Philadelphia Metropolitan and South Jersey areas in exchange for a future partnership interest in Plaintiff, Restart Temps, Inc. 74. without any investment or assistance on Plaintiff's part, Defendants developed significant "Restart" name recognition in the Greater Philadelphia Metropolitan and South Jersey areas thereby fulfilling Defendants' obligation under said agreement at substantial cost to Defendants. 75. In fulfilling Defendants' obligation under the Agreement as aforesaid, Defendant, John Carney, was forced to abandoned his employment with Source Services Corporation and experience the loss of at least 5,000 shares of Source Services Corporation stock. 76. In addition, in fulfilling their obligation under said agreement as aforesaid, Defendants have incurred debt on a line of credit which currently exists in the amount of $142,664.00. 77. Further, in fulfilling their obligation under said agreement as aforesaid, Defendants have incurred debt from a Small Business Administration loan which currently exists in the amount of $37,762.00. 78. Pursuant to a stipulation, a true and correct copy of which is attached hereto and incorporated herein as Exhibit "A", Defendants have agreed to cease and desist from using the "Restart" 14 name and thereby have given up all of the benefits and related enhanced valued of the expanded "Restart" name recognition to Plaintiff. WHEREFORE, Defendants, Restart/Delaware Valley, Inc., John H. Carney, and Nanette Sciolla Carney, respectfully request that this Honorable Court grant judgment in their favor and against Plaintiff, Restart Temps, Inc., in an amount in excess of $25,000.00, or the then prevailing local arbitration limit, together with interest, costs of suit, and reasonable attorney's fees. COUNT II , I i 79. Paragraphs 1 through 78 of Defendants' Answer, New Matter and Counterclaim are incorporated herein by reference as though fully set forth at length. 80. As a result of the time, financial investment and service provided by Defendants in expanding "Restart" name recognition in the Greater Philadelphia Metropolitan and south Jersey areas coupled with Defendants' agreement to cease and desist from using the "Restart" name pursuant to the Stipulation attached hereto and incorporated herein as Exhibit "A", Plaintiff has enjoyed the benefit and related enhanced value of said expanded "Restart" name recognition with no cost to Plaintiff and will continue to do so in the future. 81. At all times relevant hereto, Plaintiff has never offered to pay Defendants for the services rendered in achieving expanded "Restart" name recognition in the Greater Philadelphia Metropolitan 15 and South Jersey areas. 82. Defendants believe and therefore aver that the services provided by them to Plaintiff entitle Defendants to a auantum meruit award in addition the damages outlined in Count I of Defendants' Counterclaim. WHEREFORE, Defendants, Restart/Delaware Valley, Inc., John H. Carney, and Nanette Sciolla Carney, respectfully request that this Honorable Court grant judgment in their favor and against Plaintiff, Restart Temps, Inc., in an amount in excess of $25,000.00, or the then prevailing local arbitration limit, together with interest, costs of suit, and reasonable attorney's fees. Respectfully submitted, Date: '.{ 1/. 'I" 7 AND ONORATO By:' {{t/. R bert J. K, rns, Esqu re Attorney I.D. No. 16643 Kristen M. Zollers, Esquire Attorney I.D. No. 72949 Attorneys for Defendants 425 W. Main street P.O. Box 425 Lansdale, PA 19446-0029 (215) 855-9521 16 j ~ . , '- EXHIBIT "A" RESTART TEMPS, INC., plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-117 v. RESTART/DELAWARE VALLEY, INC.,: JOHN H. CARNEY and NANETTE SCIOLLA CARNEY, Defendants CIVIL ACTION-LAW & EQUITY JURY TRIAL DEMANDED STIPULATION The parties to this Stipulation are Restart Temps, Inc., the plaintiff, and the Defendants, Restart/Delaware Valley, Inc., John H. Carney and Nanette sciolla Carney. BACKGROUND On or about December 24, 1996, plaintiff filed a complaint with this Honorable court alleging a breach of contract and seeking injunctive 'relief. The Court issued its Rule to Show Cause on January 9, 1997 setting a hearing date of February 20, 1997 at 1:30 p.m. in Courtroom 4 whereupon a hearing would be held on the plaintiff's request for a preliminary injunction. NOW AND THEREFORE, the parties intending to be legally bound are entering into this stipulation to resolve the issue of injunctive relief as follows: 1. Defendants agree to cease and desist using the name Restart, in any form, derivative or partial, whatsoever and also agree to cease the use of the trademark, service mark and any materials which bear the likeness or the word Restart in any form whatsoever. 2. Defendants shall have ninety (90) days from the date of execution of this stipulation and Entry of Court Order to cease and desist using the name Restart to identify themselves and thereafter ~ ~ an additional ninety (90) days in which to cease and desist using the name Restart to refer to their former identity. By way of example, for the first ninety (90) day period following the date of " execution of this Stipulation and entry of Court Order, Defendants may continue to identify themselves using the name Restart in any form whatsoever. For the additional ninety (90) day period, Defendants may use the words "formerly Restart" in any form whatsoever. In addition, after the expiration of the first ninety (90) day period, Defendants shall provide to Plaintiff copies of . I ., any written materials which they will be utilizing. I , ! I 'I 3. Defendant shall have fourteen (14) days from the date of entry of the Court's Order in which to file any responsive pleading to the balance of the complaint. The parties respectfully request that the Court enter an Order which adopts this stipulation. WHEREFORE, the parties have caused their hands and seals to be placed below on the date written. Date: TEMPS, INC. , . ;(- 2.-0-97 Date: Date: ?hO /91 I H. Carney (Defenda fo RESTART/DELAWARE ~~e~ Nanette !Sclolla (Defendant) for RESTART/DELAWARE VALLEY, INC., (Defendant) VERIFICATION I, John H. Carney, hereby verify that I am the President of Defendant Restart/Delaware Valley, Inc., in this action, and that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities. Date: ~'L('<7') .. r-. L' LJ-. , .. " " ,', - '. , ; 1:4 " (,) : ) " L' t, I .r , I. J i__ ,,- I:. r- ....' cr ,-' Z H ~ >< til >< C t;~ ,..l til Z ,..l Z < < I>: U :>"0< I>: ~ ~ ~ z cu til :s tI1 " H tillll E-t z :: I p:: < E-t P <><,..l < z Vl ;3til,..l :E 5~ A.. <zo :E ;.. :E .,..ll>:H ;3H ~ ~ "- til:>til<u til< .... E-t CUVl Z,..l .. s; .... u z I E-t E-t .til ~I>: j "- p:: p::::cE-t I>:til C1> < < E-t tilE-t E-t E-tZtil ;3Z Vl Vl::cZ Vl=> 0 til tilo< zo Z I>: p::"z <u , .. ' . .. . I'.; \ LAW OFFICES l\[lRIN &JACUBSON SUo DERR\' "I'REET HARRISBURG. PA 17111:'260 (717) '61."., MAR 4 1~97/)V r , I f I RESTART TEMPS, INC., Plaintiff . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-117 RESTART/DELAWARE VALLEY, INC.,: JOHN H. CARNEY and NANETTE SCIOLLA CARNEY, Defendants CIVIL ACTION-LAW & EQUITY JURY TRIAL DEMANDED STIPULATION The parties to this stipulation are Restart Temps, Inc., the Plaintiff, and the Defendants, Restart/Delaware Valley, Inc., John H. Carney and Nanette Sciolla Carney. BACKGROUND On or about December 24, 1996, Plaintiff filed a complaint with this Honorable Court alleging a breach of contract and seeking injunctive relief. The Court issued its Rule to Show Cause on January 9, 1997 setting a hearing date of February 20, 1997 at 1:30 p.m. in Courtroom 4 whereupon a hearing would be held on the Plaintiff's request for a preliminary injunction. NOW AND THEREFORE, the parties intending to be legally bound are entering into this Stipulation to resolve the issue of injunctive relief as follows: 1. Defendants agree to cease and desist using the name Restart, in any form, derivative or partial, whatsoever and also agree to cease the use of the trademark, service mark and any materials which bear the likeness or the word Restart in any form whatsoever. 2. Defendants shall have ninety (90) days from the date of execution of this stipulation and Entry of Court Order to cease and claims are barred by estoppel 64. The avennent contained in paragraph 64 is a conclusion of law to which no response is required. However, should a response be required, it is denied that Plaintiff's claims are barred by the failure of consideration. 65. The avennent contained in paragraph 65 is a conclusion of law to which no response is required. However, should a response be required, it is denied that Plaintiff's claims are barred by fraud. 66. The avennent contained in paragraph 66 is a conclusion of law to which no response is required. However, should a response be required, it is denied tlmt Plaintiff's claims are barred by latches, 67. The avennent contained in paragraph 67 is a conclusion of law to which no response is required. However, should a response be required, it is denied that Plaintiff's claims are barred by the statute of frauds, 68. The avennent contained in paragraph 68 is a conclusion of law to which no response is required. However, should a response be required, it is denied thill Plairlliff's claims are barred by the statute of limitations. 69. The avennent contained in paragraph 69 is a conclusion of law 10 whieh no response is required. However, should a response be required, it is denied that Plaintiff's claims are barred by the doctrine of unclean hands. 70. The avennent cOlllained in paragraph 70 is iI conclusion of law to which no response is required. However, should a response be required, it is denied that Plaintiff's 2 action against Defendant is without basis in fact or that it has been brought vexatiously in ~ad faith and it is denied that the Defendants are entitled to attorney's fees and costs in defending this action under any theory. WHEREFORE, Plaintiff reasserts its original prayer for relief. COUNTERCLAIM COUNT I 71. Paragraphs 1 through 70 of Plaintiffs original complaint and response to New Matter are incorporated herein by reference as though fully set forth at length. 72. It is denied that in or about 1992 Charles Brockman of Plaintiff solicited and requested Defendants to expand Restart name recognition into the Greater Philadelphia Metropolitan and South Jersey areas or any other area, By way of further response, it is admitted that numerous discussions took place between the Plaintiff and the Defendants regarding the licensing agreement which was agreed to by Defendants. 73. It is denied that an agreement existed between Plaintiff and Defendants to the extent that the Defendants would expand Restart name recognition in exchange for a future partnership interest in Plaintiff Restart Temps, Inc. By way of further response, the only agreement which existed between the Plaintiff and the Defendants is that which is contained in the document which is referred to as Exhibit "A" of the original complaint. 74. It is denied that the agreement between the parties is characterized by the averment contained in paragraph 73. It is further denied that Plaintiff did not provide assistance in developing Defendant's business in the designated areas. By way of further 3 response, Plaintiff at all times provided the services as memorialized by Exhibit" ^" of the original complaint. It is denied that the agreement is as characterized in the avemlents contained in paragraph 73. It is further denied that Defendant John Carney ahandoned his employment other than by his own personal choice with any loss the result of his own conduct. 76. It is denied that in order to fulfill their obligations under the agreement liS outlined in Exhibit" A" the Defendants have incurred debt of any kind. 77. It is denied that in order to fulfill their obligation under the agreement liS contained in Exhibit" A" that Defendants would have incurred dehts of IIny kind, 78. Admitted. However, by way of further response, it is helieved IInd therefore averred that said stipulation was entered into to avoid the expense of lIppellring and the likely consequence of a hearing scheduled on a request for injunctive relief hy the I'l1Iintlffs. WHEREFORE, Plaintiff respectfully requests that this Court gmnt judgmelll In Its favor and deny the claims made by the Defendants in their entirety. COUNT II 79. Paragraphs 1 through 78 of Plaintiff's originlll complaint IInd response arc incorporated herein by reference as though fully set forth lit length. 80. It is denied that Plaintiff will enjoy hcnel1ts lInd re);lled e/lhll/lced value as a result of financial investment and service provided hy the Defcndlllll, It Is further denied that the agreement to cease and desist WllS elllered into for IIny other rCllson othcr than Defendants breached the agreement hctween the pllrties IInd were impropcrly using 4 Plaintiffs name, logo, trademark, etc. By way of further response, Plaintiff at all times provided the services required of it under the agreement between the parties as memorialized by Exhibit "A" to the original complaint. 81. It is admitted that Plaintiff has never offered to pay Defendants in that it denies that any payments are owed to Defendants, 82. The averment contained in paragraph 82 is a conclusion of law to which no response is required. Should a response be required, it is denied that Defendants are entitled to a quantum meruit award or any other award under the facts and circumstances of this case. WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant judgment in its favor and against Defendants in accord with its original prayer for relief plus any other relief that this Court deems just and equitable. NEW MA TIER 83. Defendants' counterclaims and each of its counts fails to state a cause of action upon which relief can be granted. 84. Defendants' counterclaims are barred by accord and satisfaction. 85. Defendants' counterclaims are barred by estoppel. 86. Defendants' counterclaims are barred by the failure of consideration. 87. Defendants' counterclaims are barred by latches. 88. Defendants' counterclaims are barred by the statutes of limitations. 89. Defendants' counterclaims are barred by the doctrine of unclean hands. 5 " '" , < :>< 0 Po. 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". z j , RESTART TEMPS, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-117 RESTART/DELAWARE VALLEY, INC.,: JOHN H. CARNEY and NANETTE SCIOLLA CARNEY, Defendants CIVIL ACTION-LAW & EQUITY JURY TRIAL DEMANDED REPLY TO NEW MATTER 83. - 90. Denied. Paragraphs 83 through 90 of Plaintiff's New Matter contain conclusions of law which require no responsive pleading. By way of further answer, paragraphs 1 through 82 of Defendant's Answer, New Matter and Counterclaim are incorporated by I Date: 'I ,:' '/ -/ set forth at length. '7IS: ,iERNS ~ ONORATO : ,;I/~/\l! By: I ! I - - .- - Robert J. ~erns, Esquire Attorney HD. No. 16643 Kristen M. Zollers, Esquire Attorney I.D. No. 72949 Attorneys for Defendants 425 W. Main Street P.O. Box 425 Lansdale, PA 19446-0029 (215) 855-9521 reference herein as though fully