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HomeMy WebLinkAbout01-5909MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01: 5¢0¢ IN 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 Telephone No. (717) 249-3166 MICHAEL GENNA, l/d/b/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : IN EQUITY COMPLAINT 1. Plaintiff is Michael Genna, t/d/b/a Premier Body Accents, sole proprietorship organized under the laws of the Commonwealth of Pennsylvania with a principal place of business at 609 Ross Avenue, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Defendant is Edward A. Pomponio, an adult individual currently residing at 652 Market St., Lemoyne, Cumberland County, Pennsylvania 17043. 3. At all times pertinent hereto, Plaintiff was in the business of marketing and distributing stainless jewelry nationwide. 4. On or about February 7, 2000 Defendant entered into an independent sales person agreement with Plaintiff which included in part a provision regarding confidential information and a provision regarding non-competition. A copy of said agreement is attached hereto, incorporated herein and marked Exhibit "A". 5. On May 17, 2000 Defendant entered into an employment contract with Plaintiff which incorporated certain terms and conditions included in the independent salesperson agreement set forth in Exhibit "A". A copy of the employment contract is attached hereto, incorporated herein and marked Exhibit "B". follows: The pertinent parts of the agreement set forth in Exhibits "A" and "B" provide as a. In the event of termination, the Defendant will not engage in a competitive business for a period of sixty (60) days nor will he contact or solicit any customer with whom Premier Body Accent has conducted business with during his association. b. He shall not use confidential information, disclose, publish or otherwise reveal any confidential information received from the owner to any other party without written authorization other than for purposes of business with the owner (Plaintiff). 7. On September 17, 2001 Defendant resigned his position with the Plaintiff. 8. Sometime soon thereafter, Defendant either independently or in relationship with another or other businesses which manufactured and marketed stainless steel jewelry violated the terms and conditions of the agreements with Plaintiff contained in Exhibits "A" and "B" in the following manner: a. b. C. Marketed body jewelry in the Harrisburg-Carlisle area. Called former customers and marketed to former customers of the Plaintiff. Called former customers of the Plaintiff and new customers indicating that he was still employed by the Plaintiff. d. Marketed to former customers of the Plaintiff and new customers indicating that he still was employed by the Plaintiff but submitted invoices from other manufacturers including Ring Leader or USS Manufacturing. 9. Plaintiff believes and therefore avers that Defendant has diverted thousands of dollars a week from Plaintiff's business causing him economic and irreparable harm. COUNT I BREACH OF NON-COMPETITION AGREEMENT 10. Paragraphs 1 through 9 are hereby incorporated herein by reference thereto. 11. By marketing body jewelry within the Harrisburg-Carlisle area within sixty (60) days of his termination (resignation) and within a 100 mile radius of Plaintiff's place of business the Defendant has violated the terms and conditions of his agreements with Plaintiff as set forth in Exhibits "A" and "B". WHEREFORE, Plaintiffrequests your Honorable Court to: a. Enjoin Defendant from continuing to violate the terms and conditions of his Non-Competition Agreement; b. Order and Direct Defendant to account to Plaintiff for all sales made to Plaintiff's customers or any other customers since his resignation; c. Order and Direct Defendant to pay to Plaintiff any monies made marketing body jewelry since his resignation; d. Such other and further relief as the Court shall deem just and proper under the cimumstances. COUNT II BREACH OF CONFIDENTIAL INFORMATION AGREEMENT 12. Paragraphs 1 through 11 are incorporated herein by reference thereto. 13. Defendant has used and is using confidential information of the Plaintiff' s in viola- tion of the terms and conditions of his agreement with Plaintiffas set forth in Exhibits "A" and "B". 14. Plalntiffhas suffered economic harm due to Defendant's violation of his agreements with the Plaintiff. WHEREFORE, Plaintiffprays your Honorable Court to Order and Direct Defendant to: a. Enjoin Defendant from disseminating or furnishing any in formation regarding PlaintiWs customers and records to any third parties; b. Enjoin Defendant from disseminating or furnishing any information regarding Plaintiff's customers, potential customers or any other confidential information to any third party; c. Order and Direct Defendant to account to Plaintiff for all sales made to PlaintiW s customers or potential customers, and any contacts therewith, since the termination date; and d. the cimumstances. Such other and further relief as the Court shall deem just and proper under COUNT Ili MONEY DAMAGES 15. Paragraphs 1 through 14 above are hereby incorporated herein by reference thereto. 16. On information received from reliable source, Plalntiffbetieves, and therefore avers, that since the termination/resignation date, the Defendant and others with whom he has established a business relationship has contacted customers, and potential customers of the Plaintiff and has been selling stainless steel jewelry to them. WI-IEREFORE, Plaintiff prays your Honorable Court to Order and Direct Defendant to: 4 Plaintiff; a. Enjoin Defendant from contacting any customers or potential customers of b. Account for all orders and monies received by him and anyone in a business relationship to him since September 17, 2001; Pay to the Plaintiff money damages in an amount to be determined plus interest and costs; d. Order and Direct Defendant to fully identify all individuals involved in any other individuals soliciting sales from Plaintiff's customers or potential customers; e. Order and Direct Defendant to reimburse Plaintiff for any profit Plaintiff would have made from the sales to Plaintiff's customers and potential customers that were actually made by Defendant and for the loss of good will as a result of Defendant's misrepresentations of the facts to Plaintiff's customers and new customers; and Such other and further relief as the Court may deem just and proper under the COUNT IV TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS 17. Paragraphs 1 through 16 hereof are incorporated herein by reference thereto. 18. On information received from reliable sources, Plalntiffbelieves, and therefore avers, that since the termination date, Defendant and those with whom he is in a business relationship at the present, have contacted customers of Plaintiff and new customers and falsely informed said customers that he was either continuing to work for the Plaintiff or no longer working with the circumstances. Plaintiffbut continuing to market and sell to said customers body jewelry. 19. By means of the above described artifice, Defendant has obtained sales from prior customers of Plaintiff and new customers. WHEREFORE, Plaintiff prays your Honorable Court to: a. Enjoin Defendant from contacting any customers or potential customers of Plaintiff; b. Enjoin Defendant from representing to anyone that Plaintiff that he (Defendant) is still employed by the Plaintiff; and c. Enjoin Defendant from marketing body jewelry in violation of the terms and conditions of his agreements contained in Exhibits "A" and "B". COUNT V 20. Paragraphs 1 through 19 hereof are incorporated herein by reference thereto. 21. On information received from reliable sources, Plaintiffbelieves, and therefore avers, that since the termination date, Defendant has falsely and fraudulently represented to Plaintiff's customers and other customers that he continued to act on behalf of Plaintiff and marketed body jewelry to said customers. WHEREFORE, Plaintiff requests your Honorable Court to: a. Enjdin Defendant from contacting any customers of Ptaintiffand/or any other customers in violation of the temas and conditions of his agreements with Plaintiff contained in Exhibits "A" and "B"; 6 b. Order and Direct the Defendant to account to Plaintiff for all sales and solicitations made to Plaintiffs customers and/or other customers; c. Order and Direct Defendant to fully identify all individuals involved in any other individuals soliciting sales from Plaintiffs customers or potential customers; d. Order and Direct Defendant to reimburse Plaintiff for any profit Plaintiff would have made from the sales to Plaintiff's customers and potential customers that were actually made by Defendant and for the loss of good will as a result of Defendant's misrepresentations of the facts to Plaintiffs customers and new customers; and e. Such other and further relief as the Court may deem just and proper under the circumstances. COUNT VI 22. Paragraphs 1 through 21 hereof are incorporated herein by reference thereto. 23. Defendant, through his actions, appreciated and retained benefits conferred by the Plaintiffs confidential information and his employment, including, but not limited to, techniques, documents and processes as well as Plaintiffs customer and employee information. 24. As a result oftbe circumstances under which these benefits were obtained, would be inequitable to allow Defendant to retain such benefits without payment of their value to Plaintiff. 25. Defendant has been unjustly enriched in an amount exceeding Ten Thousand ($10,000) Dollars. WHEREFORE, Plaintiffprays this Court to award Plaintiffan amount to be proven at trial 7 plus interest and costs. Respectfully submitted, L. Re~ickley 12 ~/South St. Harrisburg, PA 17101 (717) 234-0577 (717) 234-7832 Attorney for Plaintiff Premier Body Accents Independent Salesperson Agreement This agreement is made and effective Owner/Premier Body Accents, and 3/?//0/ by and between, Mike Gennn, /~'-0~/~0 /~'~/'~//~) , Salesperson. (Recipient's Name) Recipient Status It is understood that by accepting a position for sales with Premier Body Accents you will be considered an independent contractor, who shall at the end of the current and any subsequent years in business association with said company receive a 1099 form and be held solely responsible for any taxes due federal, state and local governments. It is also understood by recipient that the independent contractor relationship is wholly voluntary and can be terminated at any time with or without cause by Premier Body Accents and/or the recipient without prior notice. It is agreed that the recipient will be compensated at a rate of 20% of sales, 5% of which will be deducted weekly for the purposes of rent, supplies, leads and phone bills. Afrer a period of 6 months from the onset of the recipient's business relationship with Premier a performance evaluation will be provided by the owner, upon which the recipient will be considered for an increased compensation rate. It is understood that an increase is not guaranteed, and that it will be based solely on the individual sales performance. Recipient Initials Confidential Information The owner proposes to disclose certain of his confidential and proprietaxy information to recipient. **NOTE: Confidential information shall include all customer and prospective customer information, data, materials, products, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted, orally, in writing, or by other media, to recipient by owner. Confidential information disclosed orally shall be identified as such within five days of disclosure~ Nothing herein shall require owner to disclose any information** The Rea'pient agrees that the confidential information is to be considered as such and proprietary to owner and shall hold the same in confidence, shall not use the confidential information other than for the purposes ofbusiness with the owner and shall disclose it only to employees with a specific need to know. Redpient shall not disclose, publish, or EXHIBIT "A" othenwise reveal any confidential information received from owner to any other party whatsoever except with the specific prior written authorization of owner. The recipient shall not duplicate confidential information furnished in tangible form unless prior express authorization is given. Upon the request of'the owner, recipient shall return all Confidential Information received in writing or tangible forms, including copies, reproductions, or other media containing such Confidential Information within 5 days of such requests. Non Compete Recipient acknowledges that as a condition of this agreement, in the event of termination, either voluntary or involuntary, of the business relationship established in the preceding document, that he/she will not engage in a competitive business for the period of 60 days, nor will he/she contact or solicit any customer with whom Premier Body Accents had conducted business during his/her association. This restrictive covenant shall be for a period of 60 days from termination and shall encompass an area within a 100-mile radius Premier's place of business. &~'~/~ecipient Initials By signing, ! ~m stating that I have read, understood, and agreed to the terms outlined in the precedi~l document and shall adhere to the restrictions therein. (Recipient's Signalure~ / / (Date) (Date) PREMTER BODY ACCENTS COMPANY POL] CY AGREEMENT SALES TEAM POLZCY A. Monthly Sales Reouirements: Salesmen are expected to meet the following requirements for sales volume each month: 1000 phone calls and 1800 minutes on the phone or$16,000 in sales per month, Failure to meet any of these requirements in any given month will result in the following: Commission will be given on a sliding scale based on weekly performance (i.e. $3000 at 10%, $3000 to $4000 at 12%, and $4000+ at 15%). This incentive commission will be given until the salesmen completes two consecutive months of sales at the minimum monthly requirements listed above. Salesmen phone bills will be reviewed at the end of each month and performance evaluations are available if requested. 2. U after two months of sliding scale commission the sales requirements are not met, the salesmen will receive a written warning for performance. If after three months the salesmen may receive a suspension for one week, or employment termination. 3. A 2.5% bonus will be given for any salesman who reaches $6000+ in any week. B. Return Polio/: Orders will be shipped to any given customer a maximum of two times. If on the second shipping attempt the order is returned, the salesmen will be charged back his/her commission and the cost of one of the shipping charges. C. Bounced Check Polio/: Approving a company check for a customer is at the salesmen's discretion, The management places no terms of "good faith" in any given customer. In the event that an order is receive and the customer's check bounces, The salesmen will be responsible for the following :* 1. The cost of the Jewelry 2. The commission received on the order 3. The shipping charge 4. Any other expense associated with the retrieval of the lost funds *Tf after paying for the cost of a bounced check, the funds are retrieved, the salesman is entitled to a refund for the cost of the Jewelry and the shipping charge. D. Neoativltv In the Workolace: Productivity is based in part on our ability to work together. Negative comments or actions toward any other employee will not be tolerated. We are a team, and ridicule or harassment of any kind can compromise performance. Upon any instance of negative behavior, the employee may receive any of the following: a verbal warning, a written warning, suspension, and/or termination. Examples of negativity include, but are not limited to, the following: Rid[cule, harassment (verbal, physical, or sexual), intentionally causing distractions, goofing off, yelling at any co-worker, hanging out instead of working, EXHIBIT "B" II. New Employee Policy: New employees will be paid on the sliding scale system until the minimum monthly requirements are met..New employees are expected to adhere to ~11 of the company policies outlined herein. GENERAL COMPANY POL~rCy A. Absenteeism/Tardiness: In the event that an employee might be late, or miss a day of work, a phone call is expected no less than three hours before the shift begins. Salesmen who are late for a shift, or leave early, will lose the privilege of called in orders during the time period for which they are not at work. B. Off-Limit Areas: The following areas are off limits to all salesmen without express permission from the management: 1. Shipping Area 2. Any desk other than your own 3. Main phone line desks, including fax, postage machine, and filing cabinets C. NomComoetition Aoreement: See attached form. CONSEQUENCES A. Failure to follow any of the policies described herein, or any policy addendum, may result in any of the following: a verbal or written warning (which will be signed upon receipt), suspension for a period of time determined by the management, or employment termination. I understand and agree to the terms~ and~ policie~/~iutlined herein. __ DAtE '/ The foregoing Complaint is based on information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is tree and correct to the best of my information, knowledge and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to Pa.C.S.A.§4904 relating to unswom falsification to authorities; which provides that if I make knowingly false averments, I may be subject to criminal penalties. Michae'l'~ For Prem~e~ MICHAEL GENNA, t/d/b/a PREMIER BODYACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant iN THE COURT OF COMMON PLEAS OF CUMB~ COUNTY, PENNSYLVANIA iN EQUITY PETITION FOR PRELIMINARy iNJUNCTIVE RED PlaintiffPremier Body Accents, through its undersigned counsel, Petitions this Court for the issuance of Preliminary Injunction pursuant to Pa.R.C.P. No. 1531 and in support thereof alleges as follows: 1. Plaintiff, Premier Body Accents filed a verified Complaim in Equity with the Prothonotary of this Court on a true copy of which is attached as Exhibit "A". 2. Defendant is Edward A. Pomponio, an adult individual currently residing at 652 Market St., Lemoyne, Cumberland County, Pennsylvania 17043. 3. At all times pertinent hereto, Plaintiff was in the business of marketing and distributing stainless jewelry nationwide. 4. On or about February 7, 2000 Defendant entered into an independent sales person agreement with Plaintiff which included in part a provision regarding confidential information and a provision regarding non-competition. A copy of said agreement is attached hereto, incorporated herein and marked Exhibit "A". 5. On May 17, 2000 Defendant entered into an employment contract with Pla/ntiff which incorporated certain terms and conditions included in the independent salesperson agreement set forth in Exhibit"A". A copy of the employment contract is attached hereto, incorporated herein and marked Exhibit "B". follows: The pertinent parts of the agreement set forth in Exhibits "A" and "B" provide as a. In the event of termination, the Defendant will not engage in a competitive business for a period of sixty (60) days nor will he contact or solicit any customer with whom Premier Body Accent has conducted business with during his association. b. He shall not use confidential information, disclose, publish or otherwise reveal any confidential information received from the owner to any other party without written authorization other than for purposes of business with the owner (Plaintiff). 7. On September 17, 2001 Defendant resigned his position w/th the Plaintiff. 8. Sometime soon thereafter, Defendant either independently or in relationship with another or other businesses which manufactured and marketed stainless stecl jewelry violated the terms and conditions of the agreements with Plaintiff contained in Exhibits "A" and "B" in the following manner: a. Marketed body jewelry in the Harrisburg-Carlisle area. b. Called former customers and marketed to former customers of the Plaintiff. c. Called former customers of the Plaintiffand new customers indicating that he was still employed by the Plaintiff. d. Marketed to former customers of the Plaintiffand new customers indicating that he still was employed by the Plaint/ffbut submitted invoices from other manufacturers including Ring Leader or USS Manufacturing. 9. Plaintiff believes and therefore avers that Defendant has diverted thousands of dollars a week from Plaintiff's business causing him economic and irreparable harm. 10. By marketing bodyj ewelry within the Harrisburg-Carlisle area within sixty (60) days of his termination (resignation) and within a 100 mile radius of Plaintiff's place of business the Defendant has violated the terms and conditions of his agreements with Plaintiff as set forth in Exhibits "A" and "B". I1. granted. The Plaintiff will suffer immediate and irreparable harm if the injunction is not 12. Defendant's conduct has since the date of his resignation continues to deprive the Plaintiff of sales and profits to which it is entitled, 13. Additionally, the Defendant has used and continues to use information and contacts he established while working for and/or employed by the Plaintiffwhich are the property fights of the Plaintiff 14. Additionally, the present and future validity and integrity of the employment relationship and the agreements between the Plaintiff and its present employees is predicated upon the enfomeability of the subject agreements in this action. 15. The Plaintiff has no adequate remedy at law to redress the current and impending harm from the Defendant's continued conduct. 16. The issuance of the injunction will not be contrary to the public interest. 17. The Plaintiffis likely to succeed on the merits of its claim. 2 18. The °bligati°ns °fthe Plaintiffand Defendant through its al0,eements are clear. They arise by express contract and operation of law. The Defendant is breaching these obligations. These obligations wh/ch are enforceable in equity and Plaintiff will be entitled upon final hear/rig to a permanent injunction against their violation and the conversion of assets by Defendant. WHEREFORE, Petitioner/PlaintiffPremier Body Accents, requests that this Court: A. Issue a Rule to show cause why a Preliminary Injunction should not be granted against the Defendant Edward Pomponio; and B. After a hearing issue a Preliminary Injunction Order in the form attached issue a Preliminary Injunction Order. Respectfully submitted, (717) 234-0577 (717) 234-7832 Attorney for Plaintiff 3 MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff IN THE COURT OF COMMON PLEAS OF CIJMB~ COUNTY, PENNSYLVANIA EDWARD A. POMPONIO, Defendant v. : No. IN EQUITY 1. Plaintiff is Michael Genna, t/d/b/a Premier Body Accents, sole proprietorship organized under the laws of the Commonwealth of Pennsylvania with a principal place of business at 609 Ross Avenue, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Defendant is Edward A. Pomponio, an adult individual currently residing at 652 Market St., Lemoyne, Cumberland County, Pennsylvania 17043. 3. At all times pertinent hereto, Plaintiff was in the business of marketing and distributing stainless jewelry nationwide. 4. On or about February 7, 2000 Defendant entered into an independent sales person agreement with Plaintiff which included in part a provision regarding confidential information and a provision regarding non-competition. A copy of said agreement is attached hereto, incorporated herein and marked Exhibit "A". 5. On May 17, 2000 Defendant entered into an employment contract with Plaintiff which incorporated certain terms and conditions included in the independent salesperson agreement set forth in Exhibit "A". A copy nfthe employment contract is attached hereto, incorporated herein and marked Exhibit "B". EXHIBIT "A" follows: The pertinent parts of the agreement set forth in Exhibits "A" and "B" provide as a. In the event of termination, the Defendant w/Il not engage in a competitive business for a period of sixty (60) days nor will he contact or solicit any customer with whom Premier Body Accent has conducted business with during h/s association. b. He shall not use confidential information, disclose, publish or otherwise reveal any confidential information received from the owner to any other party without written authorization other than for purposes of business with the owner (Plaintiff). 7. On September 17, 2001 Defendant resigned h/s position with the Plaintiff 8. Sometime soon thereafter, Defendant either independently or in relationship with another or other businesses which manufactured and marketed stainless steel jewelry violated the terms and conditions of the agreements with Plaintiff contained in Exhibits "A" and "B" in the following manner: a. Marketed body jewelry in the Harrisburg-Carlisle area. b. Called former customers and marketed to former customers of the Plaintiff. c. Called former customers of the Plaintiffand new customers indicating that he was still employed by the Plaintiff. d. Marketed to former customers of the Plaintiffand new customers indicating that he still was employed by the Plaintiff but submitted invoices from other manufacturers including Ring Leader or USS Manufacturing. Plamt~ffbeheves and therefore avers that Defendant has diverted thousands of dollars 2 a week from Plaintiff's business causing him economic and irreparable harm. COUNT I BREACH OF NON-COMPETITION AGREEMENT 10. Paragraphs I through 9 are hereby incorporated herein by reference thereto. 11. By marketing body jewelry wittfin the Harrisburg-Carlisle area within sixty (60) days of his termination (resignation) and within a I00 mile radius of Plaintiff's place of business the Defendant has violated the terms and conditions of his agreements with Plaintiff as set forth in Exhibits "A" and "B". WHEREFORE, Plaintiffrequests your Honorable Court to: a. Enjoin Defendant from contimhng to violate the terms and conditions of his Non-Competition Agreement; b. Order and Direct Defendant to account to Plaintiff for all sales made to Plaintiff's customers or any other customers since his resignation; c. Order and Direct Defendant to pay to Plaintiff any monies made marketing body jewelry since his resignation; d. Such other and further relief as the Court shall deem just and proper under the circumstances. 12. 13. COUNT 1! BREACH OF CONFIDENTIAL INFORMATION AGREEMEN i Paragraphs 1 through 11 are incorporated herein by reference thereto. Defendant has used and is using confident/al information of the Plaintiff's in viola- 3 tion of the terms and conditions of his agreement with Plaintiffas set forth in Exhibits "A" and "B". 14. Plaintiffhas suffered economic harm due to Defendant's violation of his agreements with the Plaintiff WHEREFORE, Plaintiffprays your Honorable Court to Order and Direct Defendant to: a. Enjoin Defendant from disseminating or furnishing any information regarding Plaintiff's customers and records to any third parties; b. Enjoin Defendant from disseminating or furnishing any information regarding Plaintiff's customers, potential customers or any other confidential information to any third party; c. Order and Direct Defendant to account to Plaintiff for all sales made to PlaintiW s customers or potential customers, and any contacts therewith, since the termination date; and the circumstances. Such other and further relief as the Court shall deem just and proper under COUNT m 15. Paragraphs 1 through 14 above are hereby incorporated herein by reference thereto. 16. On information received from reliable source, plalntiffbelieves, and therefore avers, that since the termination/resignation date, the Defendant and others with whom he has established a business relationship has contacted customers, and potential customers of the Plaintiff and has been selling stainless steel jewelry to them. WHEREFORE, Plaintiff prays your Honorable Court to Order and Direct Defendant to: Enjoin Defendant from contacting any customers or potential customers of Plaintiff; b. Account for all orders and monies received by him and anyone in a business relationship to him since September 17, 2001; c. Pay to the Plaintiff money damages in an amount to be determined plus interest and costs; d. Order and Direct Defendant to fully identify all individuals involved in any other individuals soliciting sales from Plaintiff's customers or potential customers; e. Order and Direct Defendant to reimburse Plaintiff for any profit Plaintiff would have made from the sales to Plaintiff's customers and potential customers that were actually made by Defendant and for the loss of good will as a result of Defendant's misrepresentations of the facts to Plaintiff's customers and new customers; and f. Such other and further relief as the Court may deem just and proper under the circumstances. COUNT IV TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS 17. Paragraphs 1 through 16 hereof are incorporated herein by reference thereto. 18. On information received from reliable sources, Pla/ntiffbelieves, and therefore avers, that since the termination date, Defendant and those with whom he is in a business relationship at the present, have contacted customers of Plaintiff and new customers and falsely informed said customers that he was either continuing to work for the Plaintiff or no longer working with the 5 Plaintiff but continuing to market and sell to said customers body jewelry. 19. By means of the above described artifice, Defendant has obtained sales from prior customers of Plaintiff and new customers. WHEREFORE, Plaintiff prays your Honorable Court to: Enjoin Defendant from contacting any customers or potentiai customers of Plaintiff; b. Enjoin Defendant from representing to anyone that Plaintiff that he (Defendant) is still employed by the Plaintiff; and c. Enjoin Defendant from marketing body jewelry in violation of the terms and conditions of his agreements contained in Exhibits "A" and "B". COUNT V Fraud and De ti n 20. Paragraphs 1 through 19 hereof are incorporated herein by reference thereto. 21. On information received from reliable sources, Plaintiff believes, and therefore avers, that since the termination date, Defendant has falsely and fraudulently represented to Plaintiff's customers and other customers that he continued to act on behalf of Plaintiff and marketed body jewelry to said customers. WHEREFORE, Plaintiff requests your Honorable Court to: a. Enjoin Defendant from contacting any customers of Plaintiffand/or any other customers in violation of the terms and conditions of his agreements with Plaintiff contained in Exhibits "A" and "B"; 6 b. Order and Direct the Defendant to account to Plaintiff for all sales and solicitations made to Plaintiffs customers and/or other customers; c. Order and Direct Defendant to fully identil~ all individuals involved in any other individuals soliciting sales from Plaintiffs customers or potential customers; d. Order and Direct Defendant to reimburse Plaintiff for any profit Plaintiff would have made from the sales to Plaintiffs customers and potential customers that were actually made by Defendant and for the loss of good will as a result of Defendant's misrepresentations of the facts to Plaintiffs customers and new customers; and e. Such other and further relief as the Court may deem just and proper under the circumstances. COUNT VI Un' t E ):lament 22. Paragraphs 1 through 21 hereof are incorporated herein by reference thereto. 23. Defendant, through his actions, appreciated and retained benefits conferred by the Plaintiffs confidential information and his employment, including, but not limited to, techniques, documents and processes as well as Plaintiff's customer and employee information. 24. As a result of the cimumstances under which these benefits were obtained, would be inequitable to allow Defendant to retain such benefits without payment of their value to Plaintiff. 25. Defendant has been unjustly enriched in an amount exceeding Ten Thousand ($10,000) Dollars. WHEREFORE, Plaintiffprays this Court to award Plaintiffan amount to be proven at trial 7 plus interest and costs. Respectfully submitted, L. Re.~ickley 123/South St. Harrisburg, PA 17101 (717) 234-0577 (717) 234-7832 Attorney for Plaintiff Premier Body Accents Independent Salesperson Agreement This agreement is made and effective q/? fo~ by and between, Mike Genna, · O ate)__ Ownera'rem,er Body Accents, and -/~'0~, 0/~,~/~/~ , Salesperson. eclpieWs Name) Recipient Status It is understood that by accepting a position for sales with Premier Body Accents you ~ be considered an independent contractor, who shal! at the end of the current and any subsequent years in business association with said company receive a 1099 form and be held solely responsible for any taxes due federal, state and local governments. It is also understood by recipient that the independent contractor relationship is wholly voluntary and can be terminated at any time with or without cause by Premier Body Accents and/or the recipient without prior notice. h is agreed that the recipient will be compensated at a rate of 20% of sales, 5% of which will be deducted weekly for the purposes of rent, supplies, leads and phone bills. After a period of 6 months fi.om the onset of the recipient's business relationship with Premier a performance evaluation will be provided by the owner, upon which the recipient will be considered for an increased compensation rate. It is understood that an increase is not guaranteed, and that it will be based solely on the individual sales performance. Confidential Information The owner proposes to disclose certain of his confidential and proprietary information to recipient. **NOTE: Confidential information shall include all customer and prospective customer information, data, materials, products, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted, orally, in writing, or by other media, to recipient by owner. Confidential information disclosed orally shall be identified as such within five days of disclosure. Nothing herein shall require owner to disdese any information** The Recipient agrees that the confidential information is to be considered as such and proprietary to owner and shall hold the same in confidence, shall not use the confidential information other than for the purposes of.business with the owner and shall disclose it only to employees with a specific need to know. Redpient shall not disclose, publish, or EXHIBIT "A" otherwise reveal any confidential information received from owner to any other party whatsoever except with the specific prior written authorization of owner. The recipient shall not duplicate confidential information furn/shed in tangible form unless prior express authorization is given. Upon the request of the owner, recipient shall return all Confidential Information received in writing or tan~31e forms, including copies, reproductions, · · . such requests, or other media containing such Confidential Information within 5 days of ~A (~ Recipient/nifials , Non Compete Recipient acknowledges that as a condition of this agreement, in the event of termination, either voluntary or involuntary, of the business relationship established in the preceding document, that he/she will not engage in a competitive business for the period of 60 days, nor will he/she contact or solicit any customer with whom Premier Body Accents had conducted business during his/her association. This restrictive covenant shall be for a period of 60 days l~om termination and shall encompass an area within a 100-mile radius Premier's place of business. ~edpieat Initials By .s. lgn~.g, I nm stafi.n.g that I have read, understood, and agreed to the terms outlined ink_the prig documen~ and shall adhere to the restrictions therein. ~" (Wimess's ~nature) (Oate) Prmn~r Body PREMTER BODY ACCENTS COMPANY POLZCY AGREEMENT SALES TEAM POL:ZCY A. Monthly Sales Reouiremen,~.: Salesmen are expected to meet the following requirements for sales volume each month: 1000 phone calls and 1800 minutes on the phone or$16,000 in sales per month. Failure to meet any of these requirements in any given month will result in the following: 1. Commission will be given on a sliding scale based on weekly performance (i.e. $3000 at 10%, $3000 to $4000 at 12%, and $4000+ at 15%). This incentive commission will be given until the salesmen completes two consecutive months of sales at the minimum monthly requirements listed above. Salesmen phone bills will be reviewed at the end of each month and performance evaluations are available if requested. 2. If after two months of sliding scale commission the sales requirements are not met, the salesmen will receive a written warning for performance. If after three months the salesmen may receive a suspension for one week, or employment termination. 3. A 2.5% bonus will be given for any salesman who reaches $6000+ in any week. B. n~e_~: Orders will be shipped to any given customer a maximum of two times. If on the second shipping attempt the order is returned, the salesmen will be charged back his/her commission and the cost of one of the shipping charges. C. J~tJ3g~,jl~,~: Approving a company check for a customer is at the salesmen's discretion. The management places no terms of"good faith" in any given customer. In the event that an order is receive and the customer's check bounces. The salesmen will be responsible for the following:* 2. 3. 4. The cost of the jewelry The commission received on the order The shipping charge Any other expense associated with the retrieval of the lost funds *If after paying for the cost of a bounced check, the funds are retrieved, the salesman is entitled to a refund for the cost of the jewelry and the shipping charge. D. Neoativitv In the WorkolacP: Productivity is based in par on our ability to work together. Negative comments or actions toward any other employee will not be tolerated. We are a team, and ridicule or harassment of any kind can compromise performance. Upon any instance of negative behavior, the employee may receive any of the following: a verbal warning, a written warning, suspension, and/or termination. Examples of negativity include, but are not limited to, the following: Ridicule, harassment (verbal, physical, or sexual), Intentionally causing distractions, goofing off, yelling at any co-worker, hanging out instead of working, EXHIBIT "B" II. III. New Em Io e Polic : New employees will be paid on the sliding scale system until the minimum monthly requirements are met. ,New employees are expected to adhere to all of the company polities outlined herein. GENERAL COMPANY POL:ECY A. ~%~T~LE~9~: In the event that an employee might be late, or miss a day of work, a phone call is expected no less than three hours before the shift begins. Salesmen who are late for a shift, or leave early, will lose the privilege of called in orders during the time period for which they are not at work. B. ~: The following areas are off limits to all salesmen without express permission from the management: 1. Shipping Area 2. Any desk other than your own 3. Nain phone line desks, including fax, postage machine, and filing cabinets C, .Non-ComoeUtion Aqreement: See attached form. CONSE(~UENCES A. Failure to follow any of the policies described herein, or any policy addendum, may result in any of the following: a verbal or written warning (which will be signed upon receipt), suspension for a period of time determined by the management, or employment termination. I understand and agree to the te~7 an/~ policie~utJined herein. PRINT NAME ~G~AME The foregoing Complaint is based on information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is tree and correct to the best of my information, knowledge and belief To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and ver/fication are made subject to Pa.C.S.A.§4904 relating to unsworn falsification to author/ties; which provides that if I make knowingly false averments, I may be subject to criminal penalties. Date:. M/chae~G~e For Premi~ The foregoing Petition is based on information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have g/yen to my counsel, it is tree and correct to the best of my information, knowledge and belie£ To the extem that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to Pa.C.S.A. O4904 relating to unswom falsification to authorities; which provides that if I make knowingly false averments, I may be subject to criminal penalties. For Pre~ Accents r MICHAEL GENNA, t/d/b/a PREMIERBODYACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant IN THE COURT OF COMIVION PLEAS OF CUMB~ COUNTY, PENNSYLVANIA No. Ol-5'-qO? IN EQUITY RULE TO SHOW CAUSE AND NOW, this/,.y~g0oay of October, 2001, upon consideration of the verified Complaint in Equity in this action and the accompanying Petition for Preliminary Injunctive Relief, IT IS HEREBY ORDERED that: 1. Defendant show cause before the Court on~.~. -~11~ , 2001, at~::~'clock ~'. M. in Courtroom ,.~ at Carlisle, Pennsylvania, w'-~y a'pre i~inary injunction should not be issued, providing the relief requested by Plaintiff; and 2. Plaintiff cause copies of this Rule to show cause, the Complaint in Equity, and the Petition for Injunctive Relief with its accompanying papers, to be served upon all parties in interest at least ! 0 days before the date of the hearing. ~INVA'IAgNN~d A.tNnOO oh.!v-l~]~rlo 09:11~ .qti3010 MARTSON DEARDOKFF WILLIAMS & OTTO T£~4 L'AS~ 1~'~ STrU~T CARLISLE, PENNSYLVANIA 170 ] ~ MICHAEL GENNA, t/dPo/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-5909 EQUITY IN EQUITY DEFENDANT'S RESPONSE TO PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTIVE RELIEF TO: MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff, and his attorney, L. REX BICKLEY, ESQUIRE AND NOW, comes the Defendant, Edward A. Pomponio, by and through his attorneys, MARTSON DEARDOREF WILLIAMS & OTTO, and hereby avers as follows: 1. Admitted. 2. Admitted. 3. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to admit or deny the averments of paragraph 3, and therefore those averments are denied in accordance with the Pennsylvania Rules of Civil Procedure. 4. Admitted in part, denied in part. It is admitted Defendant signed the document attached to Plaintiff's Complaint as Exhibit "A.' By way of further response, Defendant signed the document attached to Plaintiff' s Complaint as Exhibit "A" on February 7, 2001, rather than February 7, 2000 as characterized by the Plainti~ The remaining averments of paragraph 4 constitute improper attempts to characterize or paraphrase provisions of a document which is a writing that speaks for itself, and are thus denied in accordance with the Pennsylvania Rules of Civil Procedure. 5. Denied. By way of further response, it is denied that the document attached to Plaintiff's Complaint as Exhibit "B" is an employment contract as characterized by the Plaintiff Rather, the document is a Company Policy Agreement. Furthermore, the remaining averments of paragraph 5 constitute improper attempts to characterize or paraphrase provisions of a document which is a writing that speaks for itself, and are thus denied in accordance with the Pennsylvania Rules of Civil Procedure. 6. Denied. By way of further response, the averments of paragraph 6 constitute improper attempts to characterize or paraphrase provisions of a document which is a writing that speaks for itself, and are thus denied in accordance with the Pennsylvania Rules of Civil Procedure. 7. Admitted. 8. Admitted in part, denied in part. It is admitted the Defendant marketed body jewelry in the Harrisburg-Carlisle area. All of the remaining averments of paragraph 8 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 9. Denied. Ail of the averments of paragraph 9 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 10. Denied. All of the averments of paragraph 10 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 11. Denied. All of the averments of paragraph 11 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 12. Denied. All of the averments of paragraph 12 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 13. Denied. Ail of the averments of paragraph 13 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 14. Denied. All of the averments of paragraph 14 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 15. Denied. Ail of the averments of paragraph 15 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 16. Denied. Ail of the averments of paragraph 16 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 17. Denied. Ail of the averments of paragraph 17 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 18. Denied. All of the averments of paragraph 18 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. NEW MATTER LACK OF CONSIDERATION 19. Paragraphs 1 through 18 are incorporated herein by reference as if fully set forth. 20. On or about January 2001, Defendant and Plaintiffentered into an oral employment arrangement whereby Defendant would provide professional services to Plaintiff. 21. The parties agreed that the oral employment arrangement referred to paragraph 20 herein would treat and compensate Defendant as an independent contractor under federal and Pennsylvania laws and regulations. 22. From January 2001 to February 7, 2001, Defendant provided professional services to Plaintiff.as an independent contractor in exchange for compensation from Plaintiff.as per the parties' oral employment arrangement. 23. On or about February 7, 2001, Plaintiff requested Defendant to execute an Independent Salesperson Agreement ("Agreement"), a copy of which is attached to Plaintiff's Complaint as Exhibit "A". 24. The Agreement included new restrictive confidentiality and noncompetifion provisions which were not part of the parties' original oral employment arrangement. 25. Subsequent to Defendant's execution of the Agreement, Defendant's employment status, work duties and compensation did not change. 26. On or about March 2001, Plaintiff unilaterally ceased treating and compensating Defendant as an independent contractor, and commenced treating and compensating Defendant as an employee under federal and Pennsylvania laws and regulations. 27. At all times hereto, Defendant continued to provide professional services to Plaintiff and received no additional compensation or consideration from Plaintiff.other than originally agreed by the parties in January 2001. 28. On or about May 17, 2001, Plaintiff issued and requested all employees to sign a Company Policy Agreement ("Policy"), a copy of which is attached to Plaintiff's Complaint as Exhibit 29. Subsequent to Defendant's execution of the Policy, Defendant's employment status, work duties and compensation did not change. 30. The additional restrictive confidentiality and noncompetition provisions are contractual provisions that must be supported by consideration to be binding on the parties. 31. The additional restrictive confidentiality and noncompetition provisions are restraints on Defendant's ability to work and to earn a living. 32 Plaintiff failed to provide additional consideration to Defendant for these restrictive confidentiality and noncompetition provisions. 33. Due to the lack of consideration between the parties, these restrictive confidentiality and noncompetition provisions are not binding on the parties. 34. Due to the lack of consideration between the parties and the inequitable bargaining positions of the parties, Plaintiff is estopped from attempting to enforce these provisions against Defendant. WHEREFORE, Defendant requests that Plaintiff's request for a preliminary injunction be denied and Plaintiff's complaint be dismissed with prejudice. NEW MATTER ILLEGALITY OF CONTRACT 35. Paragraphs 1 through 34 are incorporated herein by reference as if fully set forth. 36 The restrictive confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint seek to restrain and restrict Defendant's ability to earn a living and seek employment. 37. The geographic scope of these confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint is unduly restrictive on Defendant and impose an undue hardship on Defendant. 38. The temporal scope of these confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint is unduly restrictive on Defendant and impose an undue hardship on Defendant. 39. Plaintiff has failed to allege with particularity any legitimate business interest in maintaining and enforcing the confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint. 40. The confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff' s Complaint constitute a restraint on trade and competition. 41. The confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint are restraints on trade and competition, which are illegal and against the public policies of the Commonwealth of Pennsylvania WHEREFORE, Defendant requests that Plaintiff's request for a preliminary injunction be denied and Plaintiff's complaint be dismissed with prejudice. NEW MATTER PRELIMINARY INJUCTION REQUIREMENTS 42. Paragraphs I through 41 are incorporated herein by reference as if fully set forth. 43. Plaintiff fails to allege facts and circumstances, with specificity and particularity, substantiating the cause and nature of any irreparable harm Plaintiff will allegedly experience if the preliminary injunction is not granted. 44. Plaintiff fails to allege facts and circumstances, with specificity and particularity, substantiating Plaintiff's likelihood of succeeding on the merits of his claim against Defendant. 45. Plaintiff fails to allege facts and circumstances, with specificity and particularity, substantiating the public interest in allowing the grant of a preliminary injunction against Defendant. 46. Plaintiff fails to allege facts and circumstances, with specificity and particularity, substantiating Plaintiff' s claim as not unduly harsh or restrictive on Defendant or other persons. 47. Plaintiff fails to establish any clear and legitimate business interests in the enforcement of the restrictive confidentiality and noncompetition provisions against Defendant. 48. Plaintiff fails to establish, with specificity and particularity, the essential requirements necessary for the grant of an injunction against Defendant. WHEREFORE, Defendant requests that PlaintifFs request for a preliminary injunction be denied and Plaintiff's complaint be dismissed with prejudice. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. W~iams, Esquire I.D. No. 17512 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Defendant Date: October a,) , 2001 ].£~/22/20~1 12:50 '71724318§~ I'.~ D~,/O PAGE 15/15 VIERll~ICATION The foregoing Det'endant's Rezponse to Plaintiff's Petition for PrelLminary Injunctive Keller is based upon information which t~z been gathered by my ceunsel in thc preparation of the lawsuit The lan,gv, age of the document is that of counsel axed not my own. I have r~ad the document and to ~e extent that it is based upon information which 1 h~tve given to l'~y counsel, it isirue and cotter! m the best cf my knowledge, information and beli~ To the extem tha~ the content of the document is that ofcouns~, I have reli~l upon counsel in making this verification. This statement and verification ~re made subjcot to the penalties ~' 18 Pa. C.S. Section 4904 relating to ungwom falsification to ~uthorit~es, which provides t~t if I make knowingly fa.lse averments, I may be subject to criminal penalties, /~ ,f _ CERTIFICATE OF SERVICE I, Jacqueline A. Decker, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Defendant's Response to Plaintiff's Petition for Preliminary Injunctive Relief was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: L. Rex Bickley, Esquire 121 South Street Harrisburg, PA 17101 Dated: October ,~ 2001 MARTSON DEARDORFF WILLIAMS & OTTO ~aco~..0~ine X. D~cker Ten'East High Street Carlisle, PA 17013 (717) 243-3341 MARTSON DEARDORFF WILLIAMS ~,~ OTTO MDW&O TEN EAST HIGH STREET CAP. LISLE, PENNS'~%VANIA 17013 MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-5909 EQUITY IN EQUITY DEFENDANT'S ANSWER WITH NEW MATTER TO: MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, and his attorney, L. REX BICKLEY, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes the Defendant, Edward A. Pomponio, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Admitted. 2. Admitted. 3. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to admit or deny the averments of paragraph 3, and therefore those averments are denied in accordance with the Pennsylvania Rules of Civil Procedure. 4. Admitted in part, denied in part. It is admitted Defendant signed the document attached to Plaintiff's Complaint as Exhibit "A." By way of further response, Defendant signed the document attached to Plaintiff' s Complaint as Exhibit "A" on February 7, 2001, rather than February 7, 2000 as characterized by the Plaintiff The remaining averments of paragraph 4 constitute improper attempts to characterize or paraphrase provisions of a document which is a writing that speaks for itself, and are thus denied in accordance with the Pennsylvania Rules of Civil Procedure. 5. Denied. By way of further response, it is denied that the document attached to Plaintiff's Complaint as Exhibit "B" is an employment contract as characterized by the Plaintiff Rather, the document is a Company Policy Agreement. Furthermore, the averments of paragraph 5 constitute improper attempts to characterize or paraphrase provisions of a document which is a writing that speaks for itself, and are thus denied in accordance with the Pennsylvania Rules of Civil Procedure. 6 Denied. By way of further response, the averments of paragraph 6 constitute improper attempts to characterize or paraphrase provisions of a document which is a writing that speaks for itself, and are thus denied in accordance with the Pennsylvania Rules of Civil Procedure. 7. Admitted. 8. Admitted in part, denied in part. It is admitted the Defendant marketed body jewelry in the Harrisburg-Carlisle area. All of the remaining averments of paragraph 8 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 9. Denied. All of the averments of paragraph 9 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, aRer reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 10. Denied. The averments of paragraph 10 are denied as averments to which no response is required under the Pennsylvania Rules of Civil Procedure. 11. Denied. All of the averments of paragraph 11 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 12. Denied. The averments of paragraph 12 are denied as averments to which no response is required under the Pennsylvania Rules of Civil Procedure. 13. Denied. All of the averments of paragraph 13 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 14. Denied. All of the averments of paragraph 14 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 15. Denied. The averments of paragraph 15 are denied as averments to which no response is required under the Pennsylvania Rules of Civil Procedure. 16. Admitted in part, denied in part. It is admitted that Defendant has sold stainless steel jewelry since the date of his termination/resignation from Plaintiff's business. Ail of the remaining averments of paragraph 16 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 17. Denied. The averments ofparagraph 17 are denied as averments to which no response is required under the Pennsylvania Rules of Civil Procedure. 18. Denied. All of the averments of paragraph 18 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 19. Denied. All of the averments of paragraph 19 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 20. Denied. The averments of paragraph 20 are denied as averments to which no response is required under the Pennsylvania Rules of Civil Procedure. 21. Denied. All of the averments of paragraph 21 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 22. Denied. The averments ofparagraph 22 are denied as averments to which no response is required under the Pennsylvania Rules of Civil Procedure. 23. Denied. All of the averments of paragraph 23 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 24. Denied. All of the averments of paragraph 24 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. 25. Denied. All of the averments of paragraph 25 are denied either because they are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure or because, after reasonable investigation, Defendant lacks sufficient knowledge to either admit or deny the averments, and therefore those averments are denied. NEW MATTER LACK OF CONSIDERATION 26. Paragraphs I through 25 are incorporated herein by reference as if fully set forth. 27. On or about January 2001, Defendant and Plaintiffentered into an oral employment arrangement whereby Defendant would provide professional services to Plaintiff 28. The parties agreed that the oral employment arrangement referred to paragraph 27 herein would treat and compensate Defendant as an independent contractor under federal and Pennsylvania laws and regulations. 29. From January 2001 to February 7, 2001, Defendant provided professional services to Plaintiff as an independent contractor in exchange for compensation from Plaintiffas per the parties' oral employment arrangement. 30. On or about February 7, 2001, Plaintiff requested Defendant to execute an Independent Salesperson Agreement ("Agreement"), a copy of which is attached to Plaintiff's Complaint as Exhibit "A". 31. The Agreement included new restrictive confidentiality and noncompetition provisions which were not part of the parties' original oral employment arrangement. 32. Subsequent to Defendant's execution of the Agreement, Defendant's employment status, work duties and compensation did not change. 33. On or about March 2001, Plaintiff unilaterally ceased treating and compensating Defendant as an independent contractor, and commenced treating and compensating Defendant as an employee under federal and Pennsylvania laws and regulations. 34. At all times hereto, Defendant continued to provide professional services to Plaintiff and received no additional compensation or consideration from Plaintiffother than originally agreed by the parties in January 2001. 35. On or about May 17, 2001, Plaintiff issued and requested all employees to sign a Company Policy Agreement ("Policy"), a copy of which is attached to Plaintiff's Complaint as Exhibit 36. Subsequent to Defendant's execution of the Policy, Defendant's employment status, work duties and compensation did not change. 37. The additional restrictive confidentiality and noncompetition provisions are contractual provisions that must be supported by consideration to be binding on the parties. 37. The additional restrictive confidentiality and noncompetition provisions are restraints on Defendant's ability to work and to earn a living. 38. Plaintiff failed to provide additional consideration to Defendant for these restrictive confidentiality and noncompetition provisions. 39. Due to the lack of consideration between the parties, these restrictive confidentiality and noncompetition provisions are not binding on the parties. 40. Due to the lack of consideration between the parties and the inequitable bargaining positions of the parties, Plaintiff is estopped from attempting to enforce these provisions against Defendant. WHEREFORE, Defendant requests that Plaintiff's complaint be dismissed with prejudice. NEW MATTER ILLEGALITY OF CONTRACT 41. Paragraphs 1 through 40 are incorporated herein by reference as if fully set forth. 42. The restrictive confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint seek to restrain and restrict Defendant's ability to earn a living and seek employment. 43. The geographic scope of these confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint is unduly restrictive on Defendant and impose an undue hardship on Defendant. 44. The temporal scope of these confidentiality and noncompetition provisions set forth in Exhibit "A" of PlaintiWs Complaint is unduly restrictive on Defendant and impose an undue hardship on Defendant. 45. Plaintiff has failed to allege with particularity any legitimate business interest in maintaining and enforcing the confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff' s Complaint. 46. The confidentiality and noncompetition provisions set forth in Exhibit"A" ofPlaintiW s Complaint constitute a restraint on trade and competition. 47. The confidentiality and noncompetition provisions set forth in Exhibit "A" of Plaintiff's Complaint are restraints on trade and competition, which are illegal and against the public policies of the Commonwealth of Pennsylvania. WHEREFORE, Defendant requests that PlaintiWs complaint be dismissed with prejudice. Respectfully submitted, Date: October 2-.~ , 2001 MARTSON DEARDORFF WILLIAMS & OTTO BYTho~mas~j ~ill~[ms, E~squ~i~ e~''- I.D. No. 17512 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Defendant 10/22/28B1 12:58 7172431858 MD~O PAGE ~8/15 The f'orego/n& Defendant's Answer wkh New Matter is based upon infonnafioll wh/¢h has been gathered by my counsel in the preparation of the lawsuit. The language of'the document ill that Of counsel and not my own. I have read the document and to the e~ent that it is based upon information which I have given to my counsel, it ia true and correct to the bcs~ of my knowledge, information and belief. To the extent that the ¢oment oirthe document is that ofoounsel, I have relied upon zounsel in making this verification. This atategnant and verification are made subject to the penalties o£ 1 g Pa. C.$. Section 4904 relating to unswom falsification to authorities, which provides that if I make k~,~$1y f'alse averments, I :nay be subject to criminal penalties. .// / /) Edward A. Pomponio U U CERTIFICATE OF SERVICE I, Jacqueline A. Decker, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Answer with New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: L. Rex Bickley, Esquire 121 South Street Harrisburg, PA 17101 MARTSON DEARDORFF WILLIAMS & OTTO J~ue/~e A. Decker -- Ten Ehs't High Street Carlisle, PA 17013 (717) 243-3341 Dated: October ~,~, 2001 MDW scO TEN EAST HIGH STREET CARLISLE, PENNSYLVANIA ] 7013 MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-5909 EQUITY 1N EQUITY PRAECI]~E TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant in the above matter. MARTSON DEARDOKFF WILLIAMS & OTTO Thomas J. W~s, Esquire I.D. No. 17512 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Defendant Date: October 23, 2001 CERTIFICATE OF SERVICE I, Jacqueline A. Decker, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: L. Rex Bickley, Esquire 121 South Street Harrisburg, PA 17101 MARTSON DEARDORFF WILLIAMS & OTTO eCq ,u~ine A. Decker n ~st High Street Carlisle, PA 17013 (717) 243-3341 Dated: October 23, 2001 MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 01-5909 EDWARD A. POMPON-lO, : Defendant IN EQUITY ORDER AND NOW, this ~}~,l~y of October, 2001, upon consideration of the Praecipe (Motion) to Withdraw Petition for a Preliminary Injunctive ReIief, the hearing presently scheduled in this mauer for October 26, 2001 at 2:30 P.M. is hereby canceled. LAW OFFICES L. REX BICKLEY 121 SOUTH STREET HARRISBURG, PENNSYLVANIA 17101 (717) 234--0577 OCT 9 ZOO' MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff IN THE COURT OF COMMON PLEAS OF' CUMBERLAND COUNTY, PENNSYLVANIA v. No. 01-5909 EDWARD A. POMPONiO, Defendant 1N EQUITY ORDER AND NOW, this 2. °'//~day of October, 2001, upon consideration of the Praeeipo (Motion) to Withdraw Petition for a Preliminary Injunctive Relief, the hearing presently scheduled in this matter for October 26, 2001 at 2:30 P.M. is hereby canceled. BY THE COURT: LAW OFFICES L. REX BICKLEY 121 SOUTH STREET HARRISBURG, PENNSYLVANIA 17101 (717) 234-0577 MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. No. 015909 EDWARD A. POMPONIO, Defendant IN EQUITY 28. 29. 30. 31. ANSWER TO NEW MATTER 26. No response necessary. 27. Admitted. Admitted. Admitted. Admitted. Denied. The provisions included in the Agreement were part of the parties' original omi employment arrangement. More specifically, the Defendant agreed to accept employment from the Plaintiffupon condition that he agreed to confidentiality and non-competition provisions which would later be incorporated into the Agreement. 32. Admitted. 33. Admitted in part and denied in part. It is admitted that the Plaintiffbegan to treat the Defendant as an employee but did so with the consent of the Defendant who continued to remain in the PlaintiWs employment and benefit therefrom for several months thereafter. 34. Denied. The Defendant was provided the one (1%) percent raise in commissions. 35. Admitted. 36. Denied. Defendant received an incentive bonus of two and one half (2.5%) pement based on his sales performance. Additionally, as an employee he was required to abide by the terms and conditions of the Agreement. 37. The extent to which Paragraph 37 contains a conclusion of law no response is necessary. Denied. The Agreement was supported by consideration. The Defendant was provided increases and incentives as set forth above, in addition to which he continued to receive the economic benefit of his employment w/th the Plaintiff. 37. The extent to which Paragraph 37 contains a conclusion of law no response is necessary. Denied. The Agreement was supported by consideration. The Defendant was provided increases and incentives as set forth above, in addition to which he continued to receive the economic benefit of his employment with the Plaintiff. 38. Denied. As set forth in Paragraph 37 above. 39. Paragraph 39 contains conclusion of law to which no response is necessary. 40. Paragraph 40 contains conclusion of law to which no response is necessary. 41. Paragraph 41 contains conclusion of law to which no response is necessary. 42. Paragraph 42 contains conclusion of law to which no response is necessary. To the extent that Paragraph 42 contains a factual averment, it is denied the extent to which the Defendant is not prohibited fi.om seeking employment and earning a living beyond the purview of the Agreement. 43. 44. 45. Paragraph 43 contains conclusion of law to which no response is necessary. Paragraph 44 contains conclusion of law to which no response is necessary. Denied as set forth above. Additionally, Paragraph 45 contains a legal conclusion 2 to which no response is necessary. 46. Paragraph 46 contains a legal conclusion of law to wh/ch no response is necessa~. 47. Paragraph 47 contains a legal conclusion of law to which no response is necessary. Respectfully submitted, L. Re~'~ ey 121 South St. Harrisburg, PA 17101 (717)234-0577 (717)234-7832 Attomey forPlaintiff I, Michael Genna, verify that the statements made in the foregoing Answer to New Matter is true and correct to the best of my information, knowledge and belief. I understand that false statements made herein are made subject to Pa.C.S.A.§4904 relating to unswom falsification to authorities. Date:.~/O /~////~ Michael~ MICHAEL GENNA, tJd/b/a PREMIER BODY ACCENTS, : Plaintiff v. No. 015909 : EDWARD A. POMPONIO, : Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1N EQUITY PLAINTIFF'S MOTION TO COMPEL 1. A Complaint was filed by Plaintiff in the Court of Common Pleas of Cumberland County docketed to No. 015909 on October 11, 2001. 2. On November 12, 2001 Plaintiff Michael Genna, through his counsel, served on Edward Pomponio's counsel, Thoms Williams, Esq., Interrogatories. 3. On December 17, 2001 Plaintiff's counsel directed to Defendant's counsel a letter regarding the Interrogatories which were overdue at that time. A copy of said letter is attached hereto. 5. On January 4, 2002 Plaintiff's counsel received the Answers to the Interrogatories. However, the Answers were insufficient and incomplete and consequently on January 15, 2002 Defendant's counsel sent another set of Interrogatories in part reiterating the Interrogatories initially propounded. A copy of said letter is attached hereto. 6. As of this date, Defendant has neither filed Objections to Plaintiff's requests for discovery nor has he adequately answered the first set of Interrogatories nor has he answered the second set of Interrogatories at all. WHEREFORE, PlaintiffMicha¢l Genna respectfully requests your Honorable Court to order the Defendant to complete answers to Interrogatories. Respectfully submitted, L. REX J3tCCKLEY 121 S)~ith Street Ha~sburg, PA 17101 ~J17) 234-0577 /(717) 234-7832 FAX CERTIFICATE OF SERVICE I, L. Rex Bickley, Esquire, hereby certify that on this/~day of March, 2002, I served a true and correct copy of the foregoing Motion on the following by depositing a copy of the same in the U.S. mail, postage prepaid, first class postage addressed as follows: Thomas J. Williams, Esq. MARTSON DEARDORFF WILLIAMS & OTTO Ten East High St. Carlisle, PA 17013 Attorney for Defendant L.,,gg'~ BICKLEY /1/21 South Street / ~af~i~s~b~g, PA 17101 (717) 234-0577 (717) 234-7832 FAX MICHAEL GENNA, t/d/b/a : PREMIER BODY ACCENTS, : Plaintiff : v. : No. 015909 EDWARD A. POMPONIO, : Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN EQUITY PLAINTIFF'S MOTION TO COMPEL 1. A Complaint was filed by Plaintiff in the Court of Common Pleas of Cumberland County docketed to No. 015909 on October 11, 2001. 2. On November 12, 2001 Plaintiff Michael Genna, through his counsel, served on Edward Pomponio's counsel, Thorns Williams, Esq., Interrogatories. 3. On December 17, 2001 Plaintiff's counsel directed to Defendant's counsel a letter regarding the Interrogatories which were overdue at that time. A copy of said letter is attached hereto. 4. 5. On January 4, 2002 Plaintiff's counsel received the Answers to the Interrogatories. However, the Answers were insufficient and incomplete and consequently on January 15, 2002 Defendant's counsel sent another set of Interrogatories in part reiterating the Interrogatories initially propounded. A copy of said letter is attached hereto. 6. As of this date, Defendant has neither filed Objections to Plaintiff's requests for discovery nor has he adequately answered the first set of Interrogatories nor has he answered the second set of Interrogatories at all. WHEREFORE, PlaintiffMichael Genna respectfully requests your Honorable Court to order the Defendant to complete answers to Interrogatories. Respectfully submitted, (717) 234-0577 (717) 234-7832 FAX CERTIFICATE OF SERVICE I, L. Rex Bickley, Esquire, hereby notify that on this '~day of March, 2002, I served a true and correct copy of the foregoing Motion on the following by depositing a copy of the same in the US Mail, postage prepaid, first class postage addressed as follows: Thomas J. Williams, Esq. MARTSON DEARDORFF WILLIAMS & OTTO Ten East High St. Carlisle, PA 17013 L. REX~I~KLEY 121 ~%uth Street Harrisburg, PA 17101 (717) 234-0577 (717) 234-7832 FAX MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 01-5909 EQUITY ORDER OF COURT AND NOW, this 22na day of March, 2002, upon consideration of the Plaintiff's Motion To Compel and Plaintiff's Supplemental Motion, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. z,~/-~ex Bickley, Esq. 121 South Street Harrisburg, PA 17101 Attorney for Plaintiff ,,/~h~mas J. Williams, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, }[Vesley 01~.~ -{/Z J. :rc APR 1 9 o4),t MICHAEL GENrNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff IN THE COURT OF COMlvION PLEAS OF CUIV~ERLAND COUNTY, PENNSYLVANIA v. No. 015909 EDWARD A. POMPONIO, Defendant : IN EQUITY AND NOW, this 22,e~lay of April, 2002, the Rule initially issued regarding the above cap- tioned matter on March 22, 2002 is made absolute. The request of the Plaintiff is hereby granted. IT IS ORDERED that the Defendant, Edward A. Pomponio, is directed to answer the interrogatories propounded on November 12,2001 and on January 15, 2002 and provide the information requested within 20 days of service of this Order. Failure to abide by this Order shall subject the Defendant to further sanctions pursuant to Pa. R.C.P. 4019. Tb~ Def~dm~nt i~ f~h~hcr all;coted tz ~-y to the BY THE COURT: APR 1 9 MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff EDWARD A. POMPONIO, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 015909 : IN EQUITY AND NOW, this day of April, 2002, the Rule initially issued regarding the above cap- tioned matter on March 22, 2002 is made absolute. The request of the Plaintiff is hereby granted. IT IS ORDERED that the Defendant, Edward A. Pomponio, is directed to answer the interrogatories propounded on November 12,2001 and on January 15, 2002 and provide the information requested within 20 days of service of this Order. Failure to abide by this Order shall subject the Defendant to further sanctions pursuant to Pa. R.C.P. 4019. BY THE COURT: F:kFILES~DATAFtLE\Gendoe cur\ 102206.praA/t de MICHAEL GENNA, t/d/b/a PREMIER BODY ACCENTS, Plaintiff Vo EDWARD A. POMPONIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 01-5909EQUITY : IN EQUITY PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above captioned case settled and discontinued and issue a certificate reflecting same. Date: L. Rex Bickley, Esquire/ 121 South Street Harrisburg, PA 17101 (717) 234-0577 Attorney for Plaintiff