HomeMy WebLinkAbout03-0850VIP HAIR STUDIO AND DAY SPA, INC.,
Plaintiff,
V.
JUSTIN M. KELLY,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
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
a 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 THIS 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 BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
800-990-9108
VIP HAIR STUDIO AND DAY SPA, INC.,
Plaintiff,
V.
JUSTIN M. KELLY,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
forth above.
4.
COMPLAINT
AND NOW, comes Plaintiff, by its undersigned counsel of record, and respectfully brings
this action at law, setting forth in support thereof as follows:
1. Plaintiff herein is VIP Hair Studio and Day Spa, Inc., a Pennsylvania corporation
with a principal place of business at 242 York Road, Carlisle, Cumberland County, Pennsylvania.
2. Defendant, Justin M. Kelly, is an adult individual residing at 861 West North
Street, Carlisle, Cumberland County, Pennsylvania.
Plaintiff is a beauty salon and day spa facility doing business at the address set
Defendant is and was, at all times pertinent hereto, a beautician licensed by the
Commonwealth of Pennsylvania, Department of State.
5. On or about July 9, 2001, Defendant agreed to work for Plaintiff as a licensed
beautician.
6. At the time prior, Plaintiff was informed that he would have to sign an
employment agreement as a condition of his employment with VIP. Defendant was informed
that he would be agreeing to terms and conditions related to employee training at the expense of
Plaintiff and subject to reimbursement should he leave. Plaintiff also informed Defendant that he
would have to sign a confidentiality agreement not to reveal customer lists to other employers as
a condition to receiving a "book" of clientele from Plaintiff.
7. Plaintiff also stated that Defendant would have to sign a noncompetition
agreement, barring Defendant from working for another similar entity within fifteen (15) miles of
Plaintiff's job site.
8. Pursuant to Defendant's above-said oral agreement with Plaintiff, Defendant
signed a certain written employment agreement, a copy of which is attached hereto, is labeled
Exhibit A and is incorporated by reference herein.
9. The employment agreement erroneously states the employer as "VIP Hair and
Tanning Salon Corporation", which was a mutual mistake of both parties. Both parties
specifically understood that the employer was Plaintiff.
10. On or about February 4, 2003, Defendant left the employ of Plaintiff and
proceeded to work for a competing employer known by the trade name "Sassy Cuts".
11. Sassy Cuts has a principal place of business at 767 East High Street, Carlisle
Pennsylvania, where Defendant has been employed since on or about February 10, 2003.
12. The aforesaid business premises of Sassy Cuts is located within 0.4 miles of
Plaintiff's facility, where Defendant had worked.
13. Defendant was previously notified that the employment agreement is considered
by Plaintiff to be in full force and effect, and that should he violate the terms and conditions of
the proceeding, he would be subject to legal suit.
14. Defendant, after warning, has continued to be in the employ of Sassy Cuts.
15. Defendant has actively solicited the "book" of business which was assigned to
him during his employ at VIP.
2
16. Defendant had actively solicited a wedding party, which had previously been
under contract to Plaintiff, forcing Plaintiff to give a refund to the party in the amount of
$557.75, which otherwise would have been earned.
17. Plaintiff believes and therefore avers that Defendant is actively contacting other
members of his "book" of business from Plaintiff and soliciting those persons to come to Sassy
Cuts. Plaintiff suspects that it has lost approximately $1,500.00 in net profits.
18. In addition to monetary losses, Plaintiff will suffer a loss of future business and
revenues in an amount which it cannot currently assess.
19. Under Paragraph 9 of the agreement, the parties agree that Plaintiff may seek
equitable relief enjoining Defendant from "any competing activity as set forth in Paragraph 7".
20. Plaintiff will suffer irreparable harm unless equitable injunctive relief is granted.
21. Under Paragraph 9, Plaintiff is authorized to recover reasonable fees enforcing the
terms of the agreement, including reasonable attomey's fees.
WHEREFORE, Plaintiff respectfully requests the following:
A. Equitable relief enjoining Plaintiff from divulging the names of any clientele, or
soliciting said clientele from the "book" of business he was assigned by Plaintiff;
B. Compel Defendant to surrender any notes or memoranda dealing either with the
book of business or which are memoranda dealing with clientele from said book of business;
C. Granting Plaintiff damages for all past and future lost profits;
D. Enjoining Defendant from continuing to work for Sassy Cuts or any other similar
entity within 15 miles of Plaintiff' s establishment for a period of one (1) year;
E. Reasonable legal expenses;
together with interest and costs of suit, and such other relief as this Honorable Court finds
reasonable and just.
Respectfully,
Kenneth Al WisS, Esquire
Attorney I.D. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiff
4
VERIFICATION
Upon my personal knowledge or information and belief, I hereby verify that the facts
averred in the foregoing Complaint are true and correct to the best of my knowledge,
information, and belief. I understand that false statements or averments therein made will subject
me to the criminal penalties of 18Pa. C.S. § 4904 relating to unsworn falsification to authorities.
F'~OH F'R× NO. : -/'179017689 Feb. O~ 288;3:1.0:07R~1 P~
: ~LITL_ I FF'_CAP I TAL_FORD !
EMPLOYMENT AGREE
THIS AGILEEMF, NT, dated this ~_j.~day e!
b~tween Vfl.P. H~ i.~a~g !sion Co~oration (h
WHEREAS, l~mployer desires to ~Aploy ~_m_',
professional hair stylist, and Employee desires Io ent
~reiaafler c~lled "t~mployer")
~reiaafter ~alled "Employee")
lo),cc *u render sen, tees as a
die employ of the
Erflployei' on an exclusive basis;
NOW THI~P, EFOP~, in c~nsidcration of the ~tutual promir~s contained
herein and intending to be legally bound hereby, the
follows:
I. EmoIoymcnt. The Employer he[cby e
Employee hereby- a¢ccpts employment upon the
se~ fo~,
2. :[.e. II!!. 'Ibis Emplo, ymcnt A~eement i
begttn on O~e ~ day et' ~ki ,
mdcirmitely he:eafter until terr~nat¢~ by either partl.
and recognize that Employee is being cmployed on,
3_ ~. Employer agrees to p~
rendered under this A~eemen! at a ~ate of $ ..
changed fi-om time to time by Employer gi~ing t~o
agr~ to keep accurate reoord$ of tittle and to have
promptly submitted for payment. Compensation wi
basis. The payment date 0£ compensation may be ¢
two wc¢~ ad~mced notice, ~ovided that La no eve
~c~ms a~d tir~es of pa~.,%~nent so as to be ~n violation.
4. Duties. The ~mployee shall devote h
attention, and energies to the business of the Emplo
term of ~$ Agreement, bc engaged in any other pr~
nature without the prior written consent of F~mploy~
that the primary duty' of the Bmployee shall bc tutti
Neverthel~s, Employee shall perform such additio:
nploy$ the Employee. and ~
is and conditions her~iaaficr
al!~reed to begin or to have
~_~ ~ ~. and will c..~niinue
:.- Thc parties expressly agree
n "at will" basis.
y Employee for all services
per hour, This rate may be
v~¢ks noli~, l~rnploy~
ill me c~ds ~d ~lips
l ~ ~d ~t on 8 we~y
t~d ~ ~e ~pl~er on
tt shall Employ~ m~i~ ~c
~ ~ ~ fede~ law.
or her professional time,
~er and shall nat, during thc
r~ssio~al activity of similar
It is understood and als'ced
end sb'l~ng hair,
dutlos as the cleaning of
FROM : ~UT; IFF_'CAP]TALFORD!
FAX 1'40. : ?17_q0176~9 Feb. 06 21;~J 10:0QAM P:~
e. rca end shall perform such addkional fi a0ttons ss may be, from time
his~.cr work .......... "-d Pr ~d~ M~u~, ~
' e ~ l~r S ~Oi~ ~s .
w~ch' ,s' ~o~o~d ~rcia ~ z~ence m~ .
_. _ . _
li~s~es ~d ~provCs. ~ ~ai wi~ ~ 1~ ~ (2) y.~ ~ ~v~ b~ ~o
pricings sgei~t ~pl~ bd~rc ~Y ticking ~ r ~!~o~ ~up ~st may
reset ~ s di~atio~ of, ~sm~don of, or lieu
pcrforra ~e assigned duties.
6. Ernplove~c Training. Employcragrees
ion of licens, or privileges to
:hat it will pay for Employee
thriving on the t~'-ms a~d conditions set forth here~
(a) ~c proposed cou~ of ~ai~n~ m~ be dcte~cd by
Employer to ~ appropriate ~d
~mplo~ee's ebili~ to do hisser
~) ~e Empl~ee must pass the c~ M~ e "B" avenge or
(0 5~ould the ~m~lo~ee
~se. ~ployee ~lt owe ~mpl~er
Employee was reimbursed.
(d) Thc decision on whether or ne
entir,.ly within u~¢ discretion of' Employer.
7, ~. Employee recog~ze
clientele which ere Ibc valuable propertff of the Em
~nployee agrees not to divulge to arty third party
olieztt lists, nor will Aa/she Ir'tempt to contact arty
to reimburse Employee is
that Emplo?r has lists of
)loyer. L,t this regard,
ormation on erni
ient of Employer for the
purpose of soliciting ed doing hair stylhlg budnes ~d rcht~ ~s, excep~ as
n~css~ for Emplo~e to fu~ll hi.er duties ~r ~ts A~e~ent, Excep~ ~
.off. sc cxcmp~d mtd pro~d for in ~is a~t, ~e ~ ed ~o~s~n
e~ut eli ~?entc~ ~dled by Employer or Em~oy~e d~ ~ fi~ of
~ployee s ~plo~ent shall ~ considered the pr~p~ of~ployer
FROM : SLrTLIFF=CAPITALFORD! FAX NO. : 7179017689 F~b. 06 2~3 10:08APt P&
~. _N~-c~r~diio~- Durin$ ~he period oft
~ployee ~ven~, pm~, ~d ~e~ to Employ,
Employer's en~K ~to ~s A~ecment wi~
~is Agreement, and for a
· cement for ~' rc~on,
~l~ ss co~id~ta~on for
cffi~x, employee, ditcotor, or stock boldzr or' ~'
of flfle~ (t~) ~le~ ~om ~ ~en~ job ~te of
9. ~o~a~On ofA~eem~t. ~ the evem ~':~ Empl~ee ~olat~ ~ of
~qvilablc rchefbefor¢ a~y court of Jaw, i~cludivlL bu
Employee from any competin8 nctlvity ~
~er a~c~ ~ ~s re~d ~ Employee ~II
reasonable ~s~, includ~ reachable a~om~'s foe
10, T~inati~. U~n t~in~fio~ ~mpl.
prope~ ~elo~ m ~ Employs, incbdi~ client
~ndc, ,~k in ~ade, ~d ~ like. The p~
~mployer not ~ re~e~ nr ~e r~m~d
use ~d we~ ~ ~, ~e ~ployer may deduct ~e
~o~ limited ~o, e~joi~in8
Pangraph 7. Thc panics
,onsible for Bmployer's
in ~forcin8 thc t~w.s of this
~ye~ shall surrender
iists, ~iforrr,~, tools of the
h~t, should pt~ of
co~dition ~on~ rea~bl~
r~sonablo s~ fox ~uch loss
or damage from the Employee's final pay. Should s' ~ch dedu.'tion ~t be sufficient
to pay for the loss or dam~e, ~mployer exp:¢ssly r~serves the rit~l to brin~ such
l~gal proceedings at law or ecl~ity as may be allowa~le to cnfor~ the Employer's
claim.
l 1. ~xclus}vi _ty of A_a' .~n. ent, This cent~
complete affreemenc ~ ~c ~ploycr ~d Emi
mtalcm~s, ~d~em~, or ~re~n~tions have
· c Employee, ~ ~ m~ifl~ons h~cof ~!
~ss ~ ~ ~d si~ed by it or its auto'zed
12. ~. This asreemcnt shall
benefit of thc pa~cs hcrcto and ~eir respective h~
and assigns, and shall be go--cd by tnd eon~tru~
of ~he Commonwealth o~ Pennsylvania.
con~titutc~ thc sole nncl
tOyee. No verl~l or other
made ~ or rehed upon by
)ind~g ~on by ~C ~ployer
mcsenta~ve.
be binding upon ai,.d for the
~, a~.inistrators, successors,
!in accc~'dance wi~ the hws
~t
FROM : SU,T, LIF~,,~CAPiTAL_FORD FA~< NO. : ?17~017689 Feb.
13. ~=.~.li~i._~. lfany l~arl of ~ a~eme ~t is deemed ~fa~.
null ~d void. P~s d~med unfn~ should be adju: :ed
~d cnforceab~.
14. ~imt ~ati~. Upon l~quid~on o~ ~r~o~
~ploy~e's ~a~on ~~ ~plo~ ~l ~l~t ~fo~adon ~e
Empl~,
IN WITNESS WHEREOF. ~e parties hereto',
and seals the day and year first written above imendi
Date:
oat:
10: 09AM
~ iobc leBally homed hereby.
PS
TRANSACTION REPORT
FEB-06-03
FOR: Br~derm~n,Em~.Wise,Ems. 717 238 3816
09:19 AM
RECEIVE
DATE START SENDER PAGES TIME NOTE
FEB-06 09:15 AM 7179017689 5 3~20~ OK
VIP HAIR STUDIO AND DAY SPA, INC.,
Plaintiff,
Vo
JUSTIN M. KELLY,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION- EQUITY
NO. t' -O
PETITION FOR LEAVE TO CONDUCT PROMPT DISCOVERY
AND NOW, comes Plaintiff, by its undersigned counsel, and respectfully moves this
Court, pursuant to Pa. R. C. P. Rule 4007.2(b) for leave of this Court to conduct prompt
discovery and sets forth in support thereof as follows:
1. The Petitioner herein is Plaintiff.
2. The Respondent herein is Defendant.
3. Plaintiff is a hair styling studio and day spa doing business in suburban Carlisle,
Cumberland County, Pennsylvania.
Defendant is a licensed beautician who until recently was in the employ of
Plaintiff.
5.
Plaintiff is seeking monetary and injunctive relief for What it claims is
Defendant's violation of a certain employment agreement containing standard confidentiality
clauses and restrictive covenant against competition within the geographic locale (fourteen (14)
miles from Plaintiff's establishment).
6. Plaintiff is claiming the following:
A. When Defendant was hired, he signed an employment agreement for the
confidentiality of Plaintiff's clientele and restricting him from competing within fifteen (15)
miles of Plaintiff's establishment for a period of two (2) years;
When Defendant was hired, he was given a list of Plaintiff's clientele to
Bo
provide services;
C.
Defendant left the employ of Plaintiff on or about February 4, 2003, and,
on or about February 10, 2003, has taken up employment at an establishment known as Sassy
Cuts, an establishment within one-half (1/2) mile of Plaintiff's establishment;
D. Defendant has been contacting Plaintiff's clientele on the list given him
when he began work with Plaintiff;
E. Defendant has also contacted booked clients of Plaintiff and, in one
instance, has taken the business of a booked wedding party away from Plaintiff, forcing Plaintiff
to issue a refund of $557.75;
F. Defendant has also allowed his likeness and name to be used in newspaper
advertisements run by Sassy Cuts.
7. Plaintiff seeks monetary and injunctive relief against what (s)he claims is conduct
in violation of the employment agreement.
8. Plaintiff will be seeking a preliminary injunction and desires to gain information
as soon as possible rather than pursuing her claim.
9. Plaintiff desires to take the deposition of Defendant for a deposition to be held on
March 11, 2003, which is within thirty (30) days of the filing and service of the Complaint.
10. Plaintiff desires to promptly discover information, relative to bringing a motion for
preliminary injunction and more particularly in areas including the following:
mo
B.
C.
D.
A list of clientele contacted by Defendant;
The value of the services provided to these clients;
Contacts or attempts to contact other clientele of VIP;
Any agreements entered into with others pertaining to bringing in persons
on the list of contacts given by Plaintiff to Defendant, 'or any ot]her customer contacts leamed
about as a result of Defendant's employment with Plaintiff.
11. For the reasons set forth above, Plaintiff has good and sufficient reason for being
allowed to conduct prompt discovery within the thirty (30) day period from service of the
Complaint.
12. Allowing such will not work any prejudice to Defendant.
WHEREFORE, Plaintiff respectfully requests an Order of this Court giving it leave to
conduct the deposition of Defendant within thirty (30) days of service of the Complaint on
Defendant.
Respectfully,
Kenneth A. Wfse, Esquire
Attorney I.D. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiff
VERIFICATION
Upon my personal knowledge or information and belie£, I hereby verify that the facts
averred in the foregoing Petition are tree and correct to the best of my knowledge, information,
and belief. I understand that false statements or averments therein made will subject me to the
criminal penalties of 18Pa. C.S. § 4904 relating to unswom falsification to authorities.
VIP HAIR STUDIO AND DAY SPA, INC., ·
Plaintiff, .
Mo
JUSTIN M. KELLY,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION - EQUITY
· NO. t95; -o°-c'o
FEB Z ~ 2~
ORDER
AND NOW to wit this ..2'~" day of ~',r_.~rua~ . '~ "
-. _00.~. in consideration of
Plaintift's Petition for Leave to Conduct Prompt Discovery, it is hereby ORDERED that Plaintiff
is hereby given leave to conduct discovery in the form of the deposi:tion of Defendant within
thirty (30) days of service of process, or no less than seven (7) days from service of a Notice of
Deposition.
BY THE COURT:
·
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-00850 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
VIP HAIR STUDIO AND DAY SPA
VS
KELLY JUSTIN M
CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
KELLY JUSTIN M the
DEFENDANT ,
at SASSY CUTS
CARLISLE, PA 17013
SHRYLE M DIEHL, OWNER
at 1717:00 HOURS, on the 4th day of March
767 EAST HIGH STREET
by handing to
ADULT IN CHARGE
a true and attested copy of COMPLAINT
, 2003
EQUITY
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18 00
3 45
00
10 00
00
31 45
Sworn and Subscribed to before
me this /0 ~ day of
~ ~ A.D.
thonotary ' '
So Answers:
R. Thomas Kline
03/05/2003
KENNETH WISE
By:
Dep~ S<heriff/
Vo
JUSTIN M. KELLY,
VIP HAIR STUDIO AND DAY SPA, INC., · IN THE COURT OF COMMON PLEAS OF
Plaintiff i CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION - EQUITY
· NO. 03-850 EQUITY TERM
Defendant ·
TO:
NOTICE TO PLEAD
VIP Hair Studio and Day Spa, Inc.
C/o Kenneth A. Wise
126 Locust Street
P.O. Box 11480
Harrisburg, PA 17108-1489
You are hereby notified to file a written response to the enclosed Prel
Objections of Defendant Pursuant to Pa. R.C.P. No. 1028(a)(4) within tw
service hereof or a judgment may be entered against you.
Respectfully submitted,
ROMINGER & BAYL
iminary
enty (20) days from
Date: April 8, 2003
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013 ~
(717) 241-6070 ~
Supreme Court ID # 8192~
Attorney for Defendant ~
VIP HAIR STUDIO AND DAY SPA, INC., ·
Vo
JUSTIN M. KELLY,
Defendant
IN THE COURT OF COMMON PLEAS OF
Plaintiff ' CUMBERLAND COUNTY, iPENNSYLVANiA
· CIVIL ACTION - EQUITY
· NO. 03-850 EQUITY TERM:
PRELIMINARY OBJECTIONS OF DEFENDANT[
PURSUANT TO Pa. R.C.P. No. 1028(a)(4)
AND NOW, comes Defendant, Justin M. Kelly, by and through his c6unsel, Karl E.
Rominger, Esquire of the Law Firm of Rominger & Bayley and respectfully brings the following
Preliminary Objections to Plaintiff's Complaint:
1. On or about February 26, 2003, Plaintiff VIP Hair Studio and Day ~Pa, Inc., a
Pennsylvania corporation initiated suit against Defendant.
2. The suit is brought in equity to both enforce restrictive covenants Which Plaintiff
alleges restrain Defendant from his present employment, and for damages for hctions of
Defendant which are alleged to be a breach of those same restrictive covenanti.
3. The complaint alleges that Defendant began work for Plaintiff on o~ about July 9,
2001.
4. The complaint references an employment agreement as the source cfi the covenants,
which is attached and incorporated to the complaint, and is dated July 17, 2001.
5. The contract purports to be between Defendant and Pennsylvania c.6rporation V. LP.
Hair and Tanning Salon Corporation, which at the time of this action, and at the time of July 17,
2001, was and is a valid Pennsylvania Corporation separate and different from VIP Hair Studio
and Day Spa, Inc., the named Plaintiff.
6. It is alleged in the complaint that there was an oral agreement betWeen Plaintiff and
Defendant that he would sign said contract.
7. The complaint also alleges that "employment agreement erroneously states the
employer as "V.I.P. Hair and Tanning Salon Corporation", which was a muttlal mistake of both
parties." (See paragraph 9)
8. In Plaintiff's complaint it is alleged that the employment relationship began on or
about July 9th, but that no written Noncompete or other employment covenant was entered into
until July 17, 2001.
9. This fact alone renders the restrictive covenants unenforceable, as employment began
before the agreement was signed, and Defendant could not freely, intelligentl5 and knowingly
enter into said restrictive covenants after employment had already began.
10. Further, Plaintiff alleges in paragraphs 10 thru 14 of the complaint that Defendant has
violated the agreement by nature of his employment with another hair studio, Sassy Cuts, which
is within fifteen (15) miles of Plaintiff.
11. However, paragraph 8 of the alleged employment agreement says !n part that,
"employee will not engage in any business activity of cutting or styling hair fo! profit for any
similar or associated business, either as a member of a partnership or as anioffieer, an
employee, director, or stock holder of any corporate entity, within a radius iof fifteen (15)
miles from the current job site of the employer, or any other stores employer may open or
maintain". (Emphasis added)
12. The language is clear, and assuming arguendo that it would apply, hese restrictions
do not apply to Defendant if he works as an employee of a sole proprietorship. It only barrs him
from engaging in similar activity as a member of a partnership, or as an officer, employee,
director, or stock holder of any corporate entity.
13. No where in the complaint is it alleged that Sassy Cuts is a partnership, or corporate
entity which would allow for the invocation of paragraph 8, and thus the claim fails.
14. Further, since Plaintiff is not the entity named in the contract with Defendant, and
given the fact that the restrictive covenants in the employment contract are not enforceable it
assigned, absent a assignability clause, Plaintiff has no ability to enforce said 'covenants,
assuming arguendo they could have been enforced or could be enforced by th~ entity named in
said contract.
WHEREFORE, for the foregoing reasons and pursuant to Rule 1028(4) of the
Pennsylvania Rules of Civil Procedure, Defendant demurs to the claims of Plfiintiff and
respectfully asks that this Court dismiss the complaint for failure to state a cadse of action upon
which relief can be granted.
Respectfully submitted,
ROMINGER & BAYLI~Y
Date: April 8, 2003
Karl E. Rominger, Esquir~
155 South Hanover Streeti
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
VIP HAIR STUDIO AND DAY SPA, INC., ·
JUSTIN M. KELLY,
Defendant
IN THE COURT OF COMMON PLEAS OF
Plaintiff ' CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION - EQUITY
· NO. 03-850 EQUITY TERM
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this day
served a copy of the Preliminary Objections of Defendant upon the following by depositing
same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed
as follows:
Kenneth A. Wise, Esquire
126 Locust Street
P.O. Box 11489
Harrisburg, PA 17108-1489
Dated: April 8, 2003
Karl E. Rominger, Esqui/e
Attorney for Defendant
Vo
JUSTIN M. KELLY,
VIP HAIR STUDIO AND DAY SPA, INC., · IN THE COURT OF COMMON PLEAS OF
Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION - EQUITY
· NO. 03-850 EQUITY TERM
Defendant ·
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Please enter my appearance on behalf of the Defendant, Justin M. Kelly, in the above
captioned action.
Respectfully submitted,
ROMINGER & BAYLEY
Date: April 8, 2003
Karl E. Rominger, Esquire
155 South Hanover Stree~
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 8192~4
Attorney for Defendant
cc. Kenneth A. Wise, Esquire
VIP HAIR STUDIO AND DAY SPA, INC., ·
Plaintiff, ·
JUSTIN M. KELLY, ·
Defendant. ·
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION'- EQUITY
NO. 03-850
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
a 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 THIS 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 BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
800-990-91~)8
VIP HAIR STUDIO AND DAY SPA, INC.,
Plaintiff,
V·
JUSTIN M. KELLY,
Defendant.
· IN THE COURT OF COMMON PLEAS
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-850
AMENDED COMPLAINT
AND NOW, comes Plaintiff, by its undersigned counsel of record, and respectfully brings
this action at law, setting forth in support thereof as follows:
1. Plaintiff herein is VIP Hair Studio and Day Spa, Inc., a Pennsylvania corporation
with a principal place of business at 242 York Road, Carlisle, Cumberland County, Pennsylvania.
2. Defendant, Justin M. Kelly, is an adult individual residing at 861 West North
Street, Carlisle, Cumberland County, Pennsylvania.
3. Plaintiff is a beauty salon and day spa facility doing business at the address set
forth above·
4.
Defendant is and was, at all times pertinent hereto, a beautician licensed by the
Commonwealth of Pennsylvania, Department of State.
5. On or about July 9, 2001, Defendant agreed to work for Plaintiff as a licensed
beautician.
6. At the time prior, Plaintiff was informed that he would have to sign an
Employment Agreement as a condition of his employment with VIP. Defendant was informed
that he would be agreeing to terms and conditions related to employee training at the expense of
Plaintiff and subject to reimbursement should he leave. Plaintiff also informed Defendant that he
would have to sign a Confidentiality Agreement not to reveal customer lists to other employers
as a condition to receiving a "book" of clientele from Plaintiff.
7. Plaintiff also stated that Defendant would have to sign a Noncompetition
Agreement, barring Defendant from working for another similar entity within fifteen (15) miles
of Plaintiff' s j ob site.
8. Pursuant to Defendant's above-said oral agreement with Plaintiff, Defendant
signed a certain written Employment Agreement, a copy of which is attached hereto, is labeled
Exhibit A and is incorporated by reference herein.
9. The Employment Agreement erroneously states the employer as "VIP Hair and
Tanning Salon Corporation", which was a mutual mistake of both parties. Both parties
specifically understood that the employer was Plaintiff.
10. On or about February 4, 2003, Defendant left the employ of Plaintiff and
proceeded to work for a competing employer known by the trade name "Sassy Cuts".
11. Sassy Cuts has a principal place of business at 767 East High Street, Carlisle
Pennsylvania, where Defendant has been employed since on or about February 10, 2003.
12. The aforesaid business premises of Sassy Cuts is located within 0.4 miles of
Plaintiff's facility, where Defendant had worked.
13. Defendant was previously notified that the Employment Agreement is considered
by Plaintiff to be in full force and effect, and that should he violate the terms and conditions of
the proceeding, he would be subject to legal suit.
14. Defendant understood that the Employment Agreement and in particular
Paragraph 8 to mean that Defendant's working for Sassy Cuts would be a violation of the
Agreement.
15.
16.
Defendant, after warning, has continued to be in the employ of Sassy Cuts.
Defendant has actively solicited the "book" of business which was assigned to
him during his employ at VIP.
17. Defendant had actively solicited a wedding party, which had previously been
under contract to Plaintiff, forcing Plaintiff to give a refund to the party in the amount of
$557.75, which otherwise would have been eamed.
18. Plaintiff believes and therefore avers that Defendant is actively contacting other
members of his "book" of business from Plaintiff and soliciting those persons to come to Sassy
Cuts. Plaintiff suspects that it has lost approximately $1,500.00 in net profits.
19. In addition to monetary losses, Plaintiff will suffer a loss of future business and
revenues in an amount which it cannot currently assess.
20. Under Paragraph 9 of the Agreement, the parties agree that Plaintiff may seek
equitable relief enjoining Defendant from violating the Confidentiality Agreement and Non-
compete Agreements.
21. Under Paragraph 9 of the Agreement, Plaintiff is authorized to recover reasonable
fees enforcing the terms of the Agreement, including reasonable attorney's fees.
COUNT I
22. Paragraphs 1-21 above are incorporated by reference herein.
23. Plaintiff will suffer irreparable harm unless equitable injunctive relief is granted.
For the reasons set forth above, Plaintiff is entitled to injunctive relief.
WHEREFORE, Plaintiff respectfully requests the following:
A. Equitable relief enjoining Plaintiff from divulging the names of any clientele, or
soliciting said clientele from the "book" of business he was assigned by Plaintiff;
B. Compel Defendant to surrender any notes or memoranda dealing either with the
book of business or which are memoranda dealing with clientele from said book of business;
C. Granting Plaintiff damages for all past and future lost profits;
D. Enjoining Defendant from continuing to work for Sassy Cuts or any other similar
entity within 15 miles of Plaintiff's establishment for a period of one (1) year;
E. Reasonable legal expenses;
together with interest and costs of suit, and such other relief as this Honorable Court finds
reasonable and just.
24.
COUNT II
Paragraphs 1-23 above are incorporated by reference herein.
4
25. Attached hereto as Exhibit B is a list of education classes provided by Plaintiff to
Defendant and the cost to VIP of paying for Defendant's education and training within two years
of Defendant's separation from employment. The total amount of these costs to VIP on behalf of
Defendant is $1,100.00.
26. Paragraph 6.C. of the Employment Agreement (Exhibit A) reads that, "Should the
Employee be separated from employment w. ith Employer, for any reason, within two (2) years
following the completion of the course, Employee will owe Employer for the cost of that course
for which Employee was reimbursed.
27. Defendant has not paid any of the costs thereof.
WHEREFORE, Plaintiff respectfully requests judgment in this count against Defendant
in the amount of $1,100.00 together with interest and costs of suit, including reasonable
attorney's fees.
Respectfully,
./ /
Kenneth A. Wise, Esquire
Attorney I.D. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiff
'd
!
EMPLOYMENT AGRE ~E~ENT
bem'een E.I.P. Hak &/a~g Salon Co~oration (~re~afl~ c~led "EmployS")
~TNE~TH; J - - ,~ "Employee")
~E~AS, Employer desires to employ Em iloyee to rend~ se~ces as a
professional hah sWlist ~d Employee des~e$ ~o en :r the employ of~¢
Employer on ~ exclusive basis; ,
NOW THEREFOr, M consideration of ~e Mutual pro~ses contained
here~ ~d intending to be legally bound hereby, the?~ies hereto a~ee as
follows:
1. Em~los~e,t. The Employer hereby e~ploys ~e Em lo ee ~
Employee hereby accepts emplo~cnt unon the t-~ --~ ........ P ~Y ,. ~ ~e
set fo~. r ~,,~a anu conoiRo~s nerem~ter
. Te~. ~is EmplO~ent A~eementi a ced '
~egm~ on ~e f7- day of ~ ~'~ ~l ~t~., to begin or to have
indefinitely herea~r,,-,;~ ,~ ..c~~o x , ~d will con~ue
anu reco~lze th ~m~,,~- :- ~:-- , ~ . aaag p~c~ expressly a ee
~-- at ~ e,~y~c ~ ocmg employed ~ "at will" basis ~
3. ~. Employer agrees to P4Y Employee for all sen'ices
rendered under ~s A~eemenl at a rate ors ? per
ch~ged fiom time to time by Employer givi ho~. TNs rate may be ,
a~ees ~eeks notice. Employee
lo keep acetate records of time ~d to have
~11 t~e c~ds ~d slips
promptly subdued for pa~ent. Compensation wi~ be p~d out on a wee~y
basis. ~e payment date of compensation may be c !~ged by ~e Employer on
two weeks adv~ced no,ice, prodded ~at N no eve~,t shall Employer modi~, ~e
~enns ~d times ofpa>~ent so as to be m ~olation ~fstate or fedeal law.
4. Putie__._~s. The Employee shall devote h
attention, and energies to the business of the Emplc
term of this Agreement, be engaged in any other
nature wiflmut the prior wrinen consent of Employc
that the primary duty of the Employee shall be cut-Ii
Nevertheless, Employee shall perform such additiol
or her professional time,
~,er and shall not, during the
fessional activity of similar
i. It is understood and agreed
tg and styling hair.
al duties as the cleaning of
EXHIBIT A
his/t~er work area ~d shall peffo,ra ,such additional ~ ~¢tions as may be, from time
to t:me, prescribed by the Employer s Policies and PrI ~cedure M~ual, as
art, ended. Employee expressly agrees to abide by t.h~.rule$ and resulations set
forth from ttme to time in tile aforementioned Policie~ ~d Procedures M~mual,
which is incorporated herein by reference thereto.
5. Represenlations of Emplo_~ee: In cons:
entering into this Agreement, Employee represents ·
fully qualified to perform the assigned duties, that h~
licensures and approvals, and that within the last tw~
proceedings against Employee before any licensing,
result in a discontinuation of, restriction of, or limit~
perform the assigned duties. ~
&ration for Employer
Id wwrants that he/she is
/she has the requisite
(2) years there have been no
,r regulatory' group that may
ion of license or privileges to
6. Emplo',ee _Training Employer agreesithat it will pay for Employee
training on the terms ~md conditions set forth herei4
(a) The proposed course of trainin~ must be determined by
Employer ? be appropriate and the type oft{aining that would enhance the
Employee s ~bility to do his/her assigmed jolt. ....
(b) The Employee must pass the c~ttrse with a B average or
equivalent.
¢
( ) Should the Employee be separ~tted from employment with
Employer, for an), reason, within two years ~ollowing the completion of the
course, Employee will owe Employer for th~ cost of that course for wkich
Employee was reimbursed.
(d) The decision on whether or no} to reimburse Employee is
entirely within the discretion of Employer.
'L ~. Employee recognize ~ that Employer has lists of
clientele which are the valuable property of the Em ~loyer. In thi, regard,
Employee agrees not to divulge to any third party a ~y inforn~afion concerning
client lists, nor will he/she attempt to contact any client of Employer for the
purpose of soliciting and doing hair styling busines: and related services, except as
necessary, lbr Employee to fulfill his/her duties und r this
o,thcrwlse .e. xcmpted mtd provided for in thi ...... -~ .. Agreement. Except as
~ a/~cu tqt t '
~,~ouJ all c?ntele hm,dled by Employer or gm,,lo~, ~e- .4'..t-l'l-e-n.,arne..s and '?ormation
r.:mpmyee s enmlovme,,, .4...u ~. ...... v .ry- uua.,ng trle lime oI
,- ,, ,, o,,,~, uc consmerec~ the prgperty of Employer.
8. .N_on~.cgmp. etition. During the period of
period of' two (2) years after the termination of tiffs A
Employee covenants, promises, and agrees to Employ
Employer's entering into this Agreement with Emplo
engage in any business activity of cutting or styling Of
sLm. ilax or associated business, eithc~ as a member of
his Agreement, and for a
reement for ~)' reason,
Ir that. as consideration for
.'e, Employee will not
'hair for profit for any
parmership, or as an
officer, employee, director, or stock },older ol'any cot ~orate entity, within a radius
of fifteen (15) miles fi.om the current.lob site of the E: r~ployer, or any other store
or salon which Employer may open or tnainta~. ~
9. _Violation_ of A~¢em¢..!,.t. In the event tie E:mployee violates any of
the terms of the Agreement, the partics a~ce that Em fioyer may seek legal or
equitable relief before any court of law, i/,t'luding, bt not limited to, enjoining
Employee from any competing activity as aet forth in'Paragraph 7. The parties
further agree in this regard that Employee will be res ~onsib}e for Employer's
reasonable costs, including reasonable attorney's fees m enforcing the terms of this
Agreement.
10. ~. Upon termination, Lmpl
property belonging to the Employer, including client
trade, stock in trade, and the like. The parties agree
Employer not be returned, or be returned in damage,~
use and wear and tear, the Employer may deduct thel
~yee shall surrender all
lists, u:~ifom~5, tools of the
',hat, should p~op.-.rty of the
condition beyond reasonable
reasonable sum for ~uch loss
or damage from the Employee's final pay. Should sich dedt: :tion not be s,:fficient
to pa), for the loss or damage, Employer expressly r~serves the fight to bring ~uch
legal proceedings at law or equit), as ma3,' be allowal~le to enforce the Em?lo2, er's
claim. ; -
11. .Exclusivity 9fA_meemen_~ Tkis contract constitutes the sole ~d
complete agreement between the Employer and EmI~love¢. No verbal er other
statements, inducements, or representations have been ~nade to or relied upon by
the Employee, and no modification~ hereof shall be binding upon by the Employer
unless in writing and signed by it or its authorized r!p~¢sentative.
I2. ~. This agreement shall be binding upo, a~.d for the
benefit of the parties hereto and their respective hei~;~, administrators, successors,
and a,signs, and shall be governed by and construer in accordance with the laws
of the Commonwealth of Pem~$ylvania.
13. Severability. If any part oft, his agreem4nt is deemed unfair,
excessive, or unenforctable, it shall not c,~use any other part of this agreement to
be null and void. Parts deemed unfai, r shoul,"l be adju~ted by the court to be fair
and enforceable.
14., .~lient Infc. rmation. Upon liquidation o~'the corporation, or upon the
Employee s te'~.nafion of kis/her employment, all client information (phone
numbers, addresses, names, and technical informatim~) shall remain with the
Employer.
IN WITNESS WHEREOF, the parties hereto',
and seals the da)' and year first written above intendi:
Date:
lave i:ereunder set thetr han..Is
~g to bt legally bound hereb:.'.
Ernpllff) ee - '
F_Aucation Classes pro'vSdcd by VIP Hair Studio and Day S
Color Classes:
..qeptember 18,2001
October 29.9_002
November 6, 2002
November 21. 2002
January 28, 2002
January 6. 2003
Justin Cost
80.00
80.00
80.00
80.00
80.00
200.00 semi- prix'me cl;tss
Perm Cia.ss & Product Knowledge $200.00
Comtbrt Zone Class $200.00
Raylon Camp ViP paid $100.00 toward Bulmtce.
L/rand Total $1,100.00'
)a, lnc.
EXHIBIT B
VERIFICATION
Upon my personal knowledge or information and belief, I hereby verify that the facts
averred in the foregoing Amended Complaint are true and correct to the best of my knowledge,
information, and belief. I understand that false statements or averments therein made will subject
me to the criminal penalties of 18Pa. C.S. § 4904 relating to unsworn falsification to authorities.
Date: 7//f//~
CERTIFICATION OF SERVICE
I hereby certify that I am this day serving a tree and correct copy of the attached Amended
Complaim on the following individual by First Class U.S. Mail addressed as follows:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
Date:
4~e'~e~'~. ¢d'ise, Esquire
Id. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaimiff
VIP HAIR STUDIO AND DAY SPA, INC., ·
Vo
JUSTIN M. KELLY,
IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - EQUITY
:
: NO. 03-850 EQUITY TERM
:
Defendant :
NOTICE TO PLEAD
TO:
VIP Hair Studio and Day Spa, Inc.
C/o Kenneth A. Wise
126 Locust Street
P.O. Box 11480
Harrisburg, PA 17108-1489
You are hereby notified to file a written response to the enclosed Preliminary
Objections of Defendant to Plaintiffs Amended Complaint Pursuant to Pa. R.C.P. No.
1028(a)(4) and No. 1059 within twenty (20) days from service hereof or a judgment may be
entered against you.
Respectfully submitted,
ROMINGER & BAYLEY
Date: /~
~ ~.. ~oom---~nger, E~
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme C, ourt ID # 81924
Attorney fi)r Defendant
VIP HAIR STUDIO AND DAY SPA, INC., ·
Vo
JUSTIN M. KELLY,
IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
:
: NO. 03-850 EQUITY TERM
:
Defendant :
PREI,IMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S AMENDED
COMPLAINT PURSUANT TO Pa. R.C.P. No. 1028(a)(4) and No. 1509
AND NOW, comes Defendant, Justin M. Kelly, by and through his counsel, Karl E.
Rominger, Esquire of the Law Firm of Rominger & Bayley and respectfully brings the following
Preliminary Objections to Plaintiff's Amended Complaint:
1. On or about February 26, 2003, Plaintiff VIP Hair Studio and Day Spa, Inc., a
Pennsylvania corporation initiated suit against Defendant.
2. Preliminary Objections were filed on April 8, 2003, along with a Notice to Plead, and
Plaintiff filed an Amended Complaint which is now the subject of these Preliminary Objections.
3. The suit is brought in equity to both enforce restrictive covenants which Plaintiff
alleges restrain Defendant from his present employment, and for damages for actions of
Defendant which are alleged to be a breach of those same restrictive covenants.
4. The complaint alleges that Defendant began work for Plaintiff on or about July 9,
2001.
5. The complaint references an employment agreement as the source of the covenants,
which is attached and incorporated to the complaint, and is dated July 17, 2001.
6. The contract purports to be between Defendant and Pennsylvania corporation V./.P.
Hair and Tanning Salon Corporation, which at the time of this action, and at the time of July 17,
2001, was and is a valid Pennsylvania Corporation separate and different from VIP Hair Studio
and Day Spa, Inc., the named Plaintiff.
7. It is alleged in the complaint that there was an oral agreement between Plaintiff and
Defendant that he would sign said contract.
8. The complaint also alleges that "employment agreement erroneously states the
employer as "V.I.P. Hair and Tanning Salon Corporation", which was a mutual mistake of both
parties." (See paragraph 9)
9. In Plaintiff' s complaint it is alleged that the employment relationship began on or
about July 9th, but that no written Noncompete or other employment covenant was entered into
until July 17, 2001.
10. This fact alone renders the restrictive covenants unenforceable, as employment began
before the agreement was signed, and Defendant could not freely, intelligently and knowingly
enter into said restrictive covenants after employment had already began.
11. Further, Plaintiff alleges in paragraphs 10 thru 14 of the complaint that Defendant has
violated the agreement by nature of his employment with another hair studio, Sassy Cuts, which
is within fifteen (! 5) miles of Plaintiff.
12. However, paragraph 8 of the alleged employment agreement says in part that,
"employee will not engage in any business activity of cutting or styling hair for profit for any
similar or associated business, either as a member of a partnership or as an officer, an
employee, director, or stock holder of any corporate entity, 'within a radius of fifteen (15)
miles from the current job site of the employer, or any other stores employer may open or
maintain". (Emphasis added)
13. The language is clear, and assuming arguendo that it would apply, these restrictions
do not apply to Defendant if he works as an employee of a sole proprietorship. It only barrs him
from engaging in similar activity as a member of a partnership, or as an officer, employee,
director, or stock holder of any corporate entity.
14. Plaintiff has added language in paragraph 14 of the Amended Complaint alleging that
Defendant understood that the Employment Agreement would be violated by his working at
Sassy Cuts.
15. This pleading as to state of mind is irrelevant, because, assuming agruendo, that the
agreement is valid and/or enforceable, paragraph 11 of the Employment Contract mandates the
contract is to be decided only on its four comers and not any outside representation.
16. No where in the complaint is it alleged that Sassy Cuts is a partnership, or corporate
entity which would allow for the invocation of paragraph 8, and thus the claim fails.
17. Further, since Plaintiff is not the entity named in the contract with Defendant, and
given the fact that the restrictive covenants in the employment contract are not enforceable it
assigned, absent a assignability clause, Plaintiff has no ability to enforce said covenants,
assuming arguendo they could have been enforced or could be enforced by the entity named in
said contract.
WHEREFORE, for the foregoing reasons and pursuant to Rule 1028(4) of the
Pennsylvania Rules of Civil Procedure, Defendant demurs to the claims of Plaintiff and
respectfully asks that this Court dismiss the complaint for failure to state a cause of action upon
which relief can be granted.
COUNT II. PRELIMINARY OBJECTIONS OF DEFENDANT PURSUANT TO Pa.
R.C.P. No. 1028 (a) (4) and 1509
18. Previous paragraphs are incorporated by reference.
19. Plaintiff has
20. Count II of the Complaint alleges that the Employment Contract, in particular
paragraph 6 (c) (Exhibit A to the Amended Complaint), requires Defendant to repay any money
spent on classes for Defendant.
21. This is a claim for either a breach of contract or possibly unjust enrichment, which
are actions at law.
22. Rule 1020 of the Pa.R.C.P. states that a "Plaintiff may state in the complaint more
than one cause of action against the same Defendant heretofore asserted in assumpsit or
trespass"and Pa.R.C.P. Rule 1508 entitled "Pleading More than One Cause of Action" the rule
states "The Plaintiff may state in the complaint two or more causes of action cognizable in
equity".
23.
24.
Thus, Count II is not properly joinable with Count I in the Court of Equity.
This Honorable Court should sever the two suits pursuant to Pa.R.C.P. Rule 1509
and certify the contract action to the law side of the Court and/or dismiss Count II without
prejudice for Plaintiff to file an action at law as appropriate.
WHEREFORE, Defendant respectfully asks that this Honorable Court enforce the Rules
of Civil Procedure and sever Plaintiffs claims and certify Count II to the law side of Court, on a
separate docket, or in the alternative, dismiss Plaintiff's claim at law without prejudice to refile
the same at law as an action at law.
Respectfully submitted,
ROMINGER & BAYLEY
Date: /~ot7 2 3~'
Z
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney fi>r Defendant
VIP HAIR STUDIO AND DAY SPA, INC., · IN THE COURT OF COMMON PLEAS OF
Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION - EQUITY
V.
· NO. 03-850 EQUITY TERM
JUSTIN M. KELLY, '
Defendant
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this day
served a copy of the Preliminary Objections of Defendant to Plaintiff's Amended Complaint
Pursuant to Pa. R.C.P. no. I028(a)(4) and No. 1059, upon the following by depositing same in
the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as
follows:
Kenneth A. Wise, Esquire
126 Locust Street
P.O. Box 11489
Harrisburg, PA 17108-1489
Dated: ]~~7
Karl E. Rominger, Esquire
Attomey :for Defendant
VIP HAIR STUDIO AND DAY SPA, INC.,: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff, :
:
v. : CIVIL ACTION - EQUITY
:
JUSTIN M. KELLY, : NO. 03-850
:
Defendant. :
RESPONSE OF PLAINTIFF TO PRELIMINARY OBJECTIONS OF DEFENDANT
AND NOW, comes Plaintiff, by its undersigned counsel, and respectfully responds to the
Preliminary Objections of Defendant, setting forth in support thereof as follows:
1. Admitted.
2. Admitted. The document speaks for itself.
3. The document speaks for itself.
4. Admitted.
5. The document speaks for itself. By further way of response, Plaintiff incorporates
by reference Paragraphs 7-9 of the Complaint.
6. Admitted that Defendant was informed before he started work that he would have
to sign a noncompetition and confidentiality agreement and that this agreement was entered into
prior to the time he started work.
7. Admitted. The document speaks for itself.
8. Admitted only that Defendant was previously informed of having to sign an
employment contract with noncompetition and confidentiality clauses and that Defendant agreed
to do so prior to his hire and starting work.
9. This is a legal conclusion for which no response is necessary. Further denied that
Plaintiff did not freely, intentionally and knowingly enter into some restrictive covenants
beforehand which he did.
10. Admitted. The document speaks for itself.
11. The document speaks for itself.
12. Denied. It suffices to say that Defendant has admitted that in a deposition that he
understood he would be bound by the restrictive covenant had the agreement been with "VIP
Hair Studio and Day Spa, Inc." (Plaintiff) as opposed to "VIP Hair and Tanning Salon
Corporation". As such, Defendant has, in effect, admitted to a mutual mistake which provides a
basis for holding him liable under the agreement.
13. Denied for reasons set forth elsewhere herein.
14. Denied for reasons set forth and referenced herein.
WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objections be
denied.
Date: ~~//P-~
?
K~,'E~quire
Attorney I.D. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiff
VERIFICATION
Upon my personal knowledge or information and belief, I hereby verify that the facts
averred in the foregoing Response of Plaintiff to Preliminary Objections of Defendant are true
and correct to the best of my knowledge, information, and belief. I understand that false
statements or averments therein made will subject me to the criminal penalties of 18Pa. C.S. §
4904 relating to unswom falsification to authorities.
Date:__ gTACEY KENNI~
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a true and correct copy of the attached Response
of Plaintiff to Preliminary Objections of Defendant on the following individual by First Class
U.S. Mail addressed as follows:
Karl E. Rominger, Esquire
Rominger & Bayley
155 South Hanover Street
Carlisle, PA 17013
Date:
~ A.' Wise, Esquire
Id. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney For Plaintiff