HomeMy WebLinkAbout01-041761 L j
1 f }
SOWERS, GARNER,
ARCHITECTS ENG]
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SAYLOR
NEERS, INC.,
Plaintiff
CIVIL ACTION - LAW
NO. ~I - '~~7~ ~.IU~~~~~
v.
LEROY R. SCHOLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC
Defendants
NOTICE
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 LAWYER. REFERRAL SERVICE
One Courthouse Square
Carlisle, PA 17013-3387
(717) 249-3166
A V I S O
USTED HA SIDO DEMANDADO/A en Corte. Si usted desea
defenderse de las demandas que se presentan mas adelante en las
or property Or Other T1QhtS 1mpOYtant to you.
(~
t
siguientes paginas, debe tomar accion dentro de los proximos
veinte (20) dias despues de la notification de esta Demanda y
Aviso radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus
defensas de, y objecciones a, las demandas presentadas aqui en
contra suya. Se le advierte de que si usted falla de tomar
accion como se describe anteriormente, el caso puede proceder sin
usted y un fallo por cualquier suma de dinero reclamada en la
demanda o cualquier otra reclamation o remedio solicitado por el
demandante puede ser dictado en contra suya por la Corte sin mas
aviso adicional. Usted puede perder dinero o propiedad u otros
derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO
IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE
A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARR AVERIGUAR DONDE
PUEDE ENCONTRAR ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
One Courthouse Square
Carlisle, PA 17013-3387
(717) 249-3166
McNEES, WALLACE & NURICK LLC
~~
onathan H. Rudd
I.D. No. 56880
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5405
Attorneys for Plaintiff Sowers, Garner,
Saylor Architects Engineers, Inc.
Dated: July ~ 2001
- 2 -
.-
IN THE COURT OF COMMON PLEAS
ti ..
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR .
ARCHITECTS ENGINEERS, INC., .
Plaintiff CIVIL ACTION nn- LAW
LEROY R. SCHOLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC
Defendants
COMPLAINT
AND NOW COMES, Plaintiff Sowers, Garner, Saylor Architects
Engineers, Inc., by and through its attorneys, McNees, Wallace &
Nurick, and makes the following Complaint against Leroy R.
Scholl, Jr., Robert Cianfichi, and Cianfichi & Scholl
Architectural Associates, LLC.
PARTIES
1. Plaintiff is Sowers, Garner, Saylor Architects
Engineers, Inc., (hereinafter "SGS") a Pennsylvania Corporation
with its principal place of business at One Tyler Court,
Carlisle, Pennsylvania, 17013. Plaintiff was previously known as
Scholl Sowers Garner Saylor Architectural Associates, Inc.
("SSGS").
2. Defendant Leroy R. Scholl, Jr. ("Scholl"), is an adult
individual with a place of residence at 120 Dorwood Drive,
Carlisle, Pennsylvania, 17013, and a principal place of business
aC 1230 Holly Pike, Carlisle, Pennsylvania, 17013.
ti
3. Defendant Robert Cianfichi is an individual with a
place of residence at 761 Dogwood Terrace, Carlisle,
Pennsylvania, 17013, and a principal place of business at 1230
Holly Pike, Carlisle; Pennsylvania, 17013.
4. Defendant Cianfichi & Scholl Architectural Associates,
LLC ("C & S") is a Pennsylvania Corporation with a principal
place of business at 1230 Holly Pike, Carlisle, Pennsylvania,
17013.
FACTUAL BACKGROUND
5. Scholl is a licensed architect in the Commonwealth of
Pennsylvania, and a member of the American Institute of
Architects.
6. Prior to May 11, 1999, Scholl was a principal in SSGS.
Scholl had been affiliated with SSGS and its predecessors since
the original incorporation of the company on February 6, 1985.
7. Prior to May 11, 1999, Scholl was a stockholder,
officer, director and employee of SSGS.
8. On or about April 14, 1998, Scholl executed a document
titled "Confidentiality Agreement and Restriction Against
Competition." ("Agreement"). A copy of the Agreement is
attached as Exhibit A.
9. At the time he executed the Agreement, Scholl was one
of four stockholders in SSGS. The other three stockholders were
Dennis Sowers, Larry Saylor, and Bruce Garner. All four
stockholders owned an equal interest in SSGS.
10. On or about April 14, 1998, the other three
stockholders (Sowers, Saylor and Garner) executed an identical
-2-
~~
i
"Confidentiality Agreement and Restriction Against Competition"
to that executed by Scholl.
11. In the Agreement, Scholl acknowledged that there was
good and valuable consideration given in exchange for his
execution of the Agreement. The consideration included, but was
not limited to, his three business partners agreeing to the same
agreement for the benefit of Scholl.
12. In the Agreement, Scholl agreed as follows:
5. Restriction Against Competition.
(a) You agree that throughout the term of
your employment with the Company and for a period of
two (2) years thereafter, you will not, individually or
in conjunction with any other person, or as an
employee, agent, representative, partner or holder of
any interest in any other person, firm, corporation or
other association:
(i) Solicit, entice, induce any person,
firm or corporation, who or which at any time
during your employment with the Company was a
customer of the Company, to become a client or
customer of any other person, firm or
corporation;
(ii) Authorize or direct any person,
firm or corporation to solicit, entice or induce
any person, firm or corporation, who or which at
any time during your employment with the Company
was a customer of the Company, to become a
customer of any other person, firm or
corporation;
(iii) Solicit, entice or induce any
person who presently is or at any time during
your employment with the Company shall be an
employee of the Company, to become employed by
any other person, firm or corporation, and you
shall not approach any such employee for such
purpose or authorize or direct the taking of such
actions by any other person;
(iv) Solicit, participate in, directly
or indirectly, or accept business similar to any
aspect of the Company's business from any person,
-3-
~ . ~~ ..
firm or corporation, who or which was a customer
or prospect of the Company during your employment
with the Company.
13. In the Agreement, Scholl further agreed that:
6. Remedies.
(a) You acknowledge that the restrictions
contained in this Agreement are reasonable and
necessary in view of the nature of the Company's
business and in order to protect the legitimate
business interests of the Company....
(b) You further agree that if the Company
institutes legal action to enforce any provision of
this Agreement, you will pay the Company~s attorney's
fees and litigation costs incurred in enforcing the
Agreement.
14. On or about May 11, 1999, Scholl resigned his
employment and all other positions he maintained with SSGS.
Scholl subsequently transferred his stock back to the
corporation.
15. At a meeting held on May 11, 1999, between Scholl and
the other three owners of SSGS (Sowers, Saylor and Garner),
Scholl was reminded of the restrictions against competition
contained in the Agreement.
16. On or about September 21, 1999, SSGS's name was
changed to SGS.
17. In or about December, 1999, Scholl began working with
Robert Cianfichi, a licensed professional engineer in the
Commonwealth of Pennsylvania.
18. On or about June 26, 2000, Scholl and Robert Cianfichi
formed C & S. Scholl is the executive vice president and
corporate secretary for C & S. Scholl is a stockholder in C & S.
-4-
e
, ~ '~ ~
19. Thomas Ludwig ("Ludwig") was an employee of SSGS and
SGS from August 22, 1993 through June 14, 2000. Ludwig is a
licensed architect in the Commonwealth of Pennsylvania.
20. In or about September, 2000, Ludwig became employed
and/or otherwise associated with C & S.
21. Jeffrey Newlin ("Newlin") was an employee of SSGS from
May 11, 1987 to April 30, 1997, and November 24, 1997 through
April 15, 1999. Newlin performed Computer Aided Design work for
Plaintiff.
22. In or about the fall of 2000, Newlin became employed
and/or otherwise associated with C & S, up through when he left C
& S in February, 2001.
23. Amy Starner ("Starner") was an employee of SSGS and SGS
from November 30, 1998 through October 6, 1999. Starner was an
administrative assistant while employed at SSGS and SGS.
24. In or about November, 1999, Starner became employed
and/or otherwise associated with Lee Scholl, then became employed
by C & S, up through when she left C & S in February, 2001.
A/1TT.TT Y
SGS v. SCHOLL
BREACH OF CONTRACT
25. Plaintiff incorporates herein by reference paragraphs 1
through 24 above as if set forth herein at length.
26. Prior to May 11, 1999, SSGS had a long-standing
relationship with the Redevelopment Authority of Cumberland
County ("Redevelopment Authority"). The Redevelopment Authority
-5-
i~
4
was one of SSGS's major clients and SSGS had performed numerous
projects for the Redevelopment Authority prior to May 11, 1999.
27. In December, 1999, the Redevelopment Authority issued a
Request for Proposal for architectural services in connection
with the redevelopment of the former Woolworth building in
Carlisle, Pennsylvania.
28. On January 5, 2000, SGS submitted a proposal to the
Redevelopment Authority to provide the requested architectural
services for the Woolworth building redevelopment.
29. On or about January 20, 2000, SGS was notified by the
Redevelopment Authority that it was going to award the contract
for architectural services to Robert Cianfichi, P.E., based on
his association with Scholl. Cianfichi is not a licensed
architect, and Scholl was the only licensed architect that he had
in his employ in January, 2000.
30. The only reason the Redevelopment Authority awarded the
contract to Robert Cianfichi is because he was associated with
Scholl.
31. Scholl was materially involved in soliciting, enticing,
and inducing the Redevelopment Authority to award the contract to
Robert Cianfichi.
32. After being informed that the Redevelopment Authority
had awarded the contract to Robert Cianfichi, SGS notified
Scholl's counsel that this constituted a violation of the
Agreement, and demanded that Scholl immediately cease and desist
from any further competition with SGS in violation of the
Agreement, and that Scholl immediately remove himself from
-6-
involvement in any ongoing projects with current or former
customers of SGS.
33. Scholl ignored SGS's demand and Scholl continued to
perform services for the Redevelopment Authority.
34. Scholl, either directly or through an authorized
.;
representative, contacted the Redevelopment Authority to report
SGS's demand that Scholl abide by the terms of the Agreement. As
a result of this contact, the Redevelopment Authority contacted
SGS and informed it that the relationship between SGS and the
Redevelopment Authority had been jeapordized.
35. Prior to May 11, 1999, and while Scholl was employed by
SSGS, the Carlisle Area School District was a customer of SSGS.
36. Since becoming associated with Robert Cianfichi, Scholl
has solicited, enticed, and/or induced the Carlisle Area School
District to become a client or customer of Robert Cianfichi
and/or C & S.
37. C & S has accepted business from the Carlisle Area
School District and provided architectural services to the
Carlisle Area School District for renovations at the Wilson and
Lamberton Middle Schools.
38. Robert Cianfichi and/or C & S has accepted business
from the Carlisle Area School District and provided architectural
services to the Carlisle Area School District for development at
the former Swarner Mansion.
39. It is believed that Robert Cianfichi, C & S and/or
Scholl have accepted business from the Carlisle Area School
District and provided architectural services to the Carlisle Area
-7-
School District for other projects during the period from May 11,
1999, through May 11, 2001.
40. Prior to May 11, 1999, and while Scholl was employed by
SSGS, the Carlisle Borough was a customer of SSGS.
41. Since becoming associated with Robert Cianfichi and C &
S, Scholl has solicited, enticed, and/or induced the Carlisle
Borough to become a client or customer of Robert Cianfichi and/or
C & S.
42. Robert Cianfichi and/or C & S has accepted business
from the Carlisle Borough and provided architectural services to
the Carlisle Borough for the renovations to the Carlisle
Community Center building.
43. It is believed that Robert Cianfichi, C & S and/or
Scholl have accepted business from the Carlisle Borough and
provided architectural services to the Carlisle Borough for other
projects during the period from May 11, 1999, through May 11,
2001.
44. Prior to May 11, 1999, and while Scholl was employed by
SSGS, the Diocese of Harrisburg was a customer of SSGS.
45. Since becoming associated with Robert Cianfichi and/or
C & S, Scholl has participated in solicitation of the Diocese of
Harrisburg to become a client or customer of Robert Cianfichi
and/or C & S.
46. Scholl has authorized and directed employees of C & S
to solicit the Diocese of Harrisburg to become a client of Robert
Cianfichi and/or C & S.
-8-
47. Scholl has solicited, enticed, and induced Ludwig,
Newlin, and Starner, all of whom were employed by SSGS while
Scholl was employed there, to become employees of C & S for some
period of time.
4S. Scholl has authorized and/or directed Ludwig to solicit
employees of Plaintiff to become employees of C & S.
49. Scholl has authorized andjor directed Ludwig to contact
certain of Plaintiff's clients to solicit their business for C &
S.
50. Prior to May 11, 1999, Rettew Associates was a customer
of SSGS.
51. Since becoming associated with Robert Cianfichi and/or
C & S, Scholl has solicited Rettew Associates to do business with
Robert Cianfichi and/or C & S and/or has entered into business
relationships with Rettew Associates.
52. Scholl has authorized and/or directed others to solicit
and/or enter into business relationships with Rettew Associates.
53. Between May 11, 1999 and May 11, 2001, Scholl either
directly, or through individuals that he authorized or directed,
has attempted to solicit the business of the County of
Cumberland, which was a customer of SSGS while Scholl was
employed there.
54. Between May 11, 1999 and May 11, 2001, Scholl either
directly, or through individuals that he authorized or directed,
has attempted to solicit the business of Fry Communications,
Inc., which was a customer of SSGS while Scholl was employed
there.
-9-
55. It is believed and averred that Scholl has either
directly, or through individuals that he authorized or directed,
attempted to solicit the business of other entities or
individuals who were customers of SSGS while Scholl was employed
there.
56. It is believed and averred that between May 11, 1999
and May 11, 2001, C & S and/or Scholl accepted business from
entities or individuals who were customers of SSGS while Scholl
was employed there.
57. As a result of the above referenced conduct, Scholl has
breached the Agreement.
58. Scholl's multiple breaches of the Agreement have been
knowing, willing and voluntary.
59. As a result of Scholl's breaches of the Agreement,
Plaintiff has suffered the loss of income.
60. As a result of Scholl's breaches of the Agreement, C &
S and Scholl have received income which they would not have
received but for Scholl's breaches of the Agreement.
61. Plaintiff is entitled to recover from Scholl all income
and benefits that he wrongfully received as a result of his
breaches of the Agreement and/or the income lost by Plaintiff.
62. Plaintiff is entitled to recover all legal expenses,
including attorneys' fees, incurred in pursuing this action.
Plaintiff demands judgment in its favor and
against Leroy R. Scholl, Jr., in an amount in excess of that
requiring compulsory arbitration, together with attorneys' fees,
interest, and costs.
-10-
.' ,
r+nrmrr r r
SGS v. ROBERT CIANFICHI AND C & S
INTERFERENCE WITH CONTRACTUAL RELATIONS
63. Plaintiff incorporates herein by reference paragraphs 1
through 62 above as if set forth herein at length.
64. Robert Cianfichi and C & S have at all relevant times
been aware of the restrictions against competition contained in
the Agreement between Plaintiff and Scholl.
65. Despite their knowledge of the restrictions contained
in Scholl's Agreement, Robert Cianfichi and C & S have actively
engaged in soliciting, enticing, and inducing persons, firms
and/or corporations who were customers of Plaintiff while Scholl
was employed there to become customers of Robert Cianfichi and C
& S.
66. Despite their knowledge of the restrictions contained
in Scholl's Agreement, Robert Cianfichi and C & S have accepted
business from persons, firms and/or corporations who were
customers of Plaintiff while Scholl was employed there.
67. Despite their knowledge of the restrictions contained
in Scholl's Agreement, Robert Cianfichi and C & S have actively
solicited, enticed, and induced persons who were employees of
Plaintiff while Scholl was employed there to become employed or
otherwise associated with Robert Cianfichi and/or C & S.
-11-
',
68. Robert Cianfichi's and C & 5's actions as described
above constitute a willful and deliberate interference with the
contractual relationship between Plaintiff and Scholl.
69. Robert Cianfichi's and C & S's tortious conduct has
been knowing, willing and voluntary.
70. As a result of Robert Cianfichi's and C & S's
interference with Plaintiff's contractual arrangement with
Scholl, Plaintiff has suffered the loss of income.
71. As a result of Robert Cianfichi's and C & S's
interference with Plaintiff's contractual arrangement with
Scholl, Robert Cianfichi, C & S and Scholl have received income
which they would not have received but for Robert Cianfichi's and
C & S's tortious conduct.
72. Plaintiff is entitled to recover from Robert Cianfichi
and C & S all income that they wrongfully received as a result of
their interference with contractual relations and/or the income
lost by Plaintiff.
WHEREFORE, Plaintiff demands judgment in its favor and
against Defendants Robert Cianfichi and Cianfichi & Scholl
Architectural Associates, LLC, in an amount in excess of that
requiring compulsory arbitration, together with interest, and
costs.
-12-
coUNT III
SGS v. SCROLL, ROBERT CIANFICHI and C & S
INTERFERENCE WITH CONTRACTUAL RELATIONS
73. Plaintiff incorporates herein by reference paragraphs 1
through 72 above as if set forth herein at length.
74. Ludwig executed a Confidentiality Agreement and
Restriction Against Competition substantially similar to the one
executed by Scholl.
75. The restrictions against competition included in
Ludwig's Agreement are identical to the restrictions contained in
Scholl's Agreement.
76. Scholl, Robert Cianfichi, and C & S are and have been
aware of the restrictions against competition contained in
Ludwig's Agreement.
77. Despite Scholl's, Robert Cianfichi's, and C & S's
knowledge of the restrictions against competition contained in
Ludwig's Agreement, they have actively authorized, directed, and
encouraged Ludwig to solicit, entice and induce persons, firms,
and/or corporations who were customers of Plaintiff during
Ludwig's employment with Plaintiff to do business with C & S.
78. Scholl's, Robert Cianfichi's and C & S's actions as
described above constitute a willful and deliberate interference
with the contractual relationship between Plaintiff and Ludwig.
79. Scholl's, Robert Cianfichi's, and C & S's tortious
conduct has been knowing, willing and voluntary.
-13-
< ,
80. As a result of Scholl's, Robert Cianfichi's, and C &
S's interference with Plaintiff's contractual arrangement with
Ludwig, Plaintiff has suffered a loss of income.
81. As a result of Scholl's, Robert Cianfichi's, and C &
S's interference with Plaintiff's contractual arrangement with
Ludwig, Scholl, Robert Cianfichi, and C & S have received income
which they would not have received but for their tortious
conduct.
82. Plaintiff is entitled to recover from Scholl, Robert
Cianfichi, and C & S all income that they wrongfully received as
a result of their interference with contractual relations and/or
the income lost by Plaintiff.
Plaintiff demands judgment in its favor and
against Defendants Leroy R. Scholl, Jr., Robert Cianfichi, and
Cianfichi & Scholl Architectural Associates, LLC, in an amount in
excess of that requiring compulsory arbitration, together with
interest, and costs.
COUNT IV
SGS v. SCHOLL
BREACH OF FIDUCIARY DUTY
83. Plaintiff incorporates herein by reference paragraphs 1
through 82 above as if set forth herein at length.
84. At all relevant times prior to May 11, 1999, Scholl was
the President and Chairman of the Board of Directors of
Plaintiff.
-14-
85. As an officer and director of Plaintiff, Scholl owed
certain fiduciary duties to Plaintiff, including the duty to act
in a manner which was in the best interests of the corporation
and with the care, skill and diligence that a person of ordinary
prudence would use under similar circumstances.
86. For a period of time prior to May 11, 1999, Scholl
failed to act in a manner which was in the best interests of the
corporation and with the care, skill and diligence that a person
of ordinary prudence would use under similar circumstances.
Specifically,
a. Scholl repeatedly mismanaged projects for
Plaintiff;
b. Scholl failed to devote sufficient time and effort
to his architectural practice and performed substantially less
work than the other officers and shareholders of Plaintiff;
c. Scholl failed to generate significant new work for
the benefit of the Plaintiff;
d. Scholl failed to accept responsibility for the
management of projects and the Plaintiff's business;
e. Scholl lacked organization in his architectural
practice;
f. Scholl failed to properly lead project teams under
his control;
g. Scholl failed to properly utilize, train and
develop Plaintiff's staff and members of his project team;
h. Scholl lacked motivation in his architectural
practice;
-15-
i. Scholl failed to generate billings commensurate
with his compensation and distributions from Plaintiff as
compared to the billings generated by the other officers and
shareholders who were actively practicing architecture; and,
j. Scholl failed to make reasonable efforts to
collect amounts owed to Plaintiff for projects managed by Scholl.
87. Scholl's breach of his fiduciary duties to Plaintiff
has caused Plaintiff to suffer lost profits and increased
expenses.
88. Scholl is liable to Plaintiff as a result of his breach
of fiduciary duties to Plaintiff.
WHEREFORE, Plaintiff demands judgment in its favor and
against Leroy R. Scholl, Jr., in an amount in excess of that
requiring compulsory arbitration, together with interest, and
costs.
McNEES WALLACE & NURICK LLC
~0 Pine Street
O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Dated: June ~, 2001
-16-
CONFIDENTIALITY AGREEMENT AND
RESTRICTION AGAINST COMPETITION
1. Introduction. This Agreement dated the 1'~ day of ~, (_ , 1998 is
hereby entered by and between (~~ ~i,oC.(_ ("Employee") and Scholl
Sowers Gamer Saylor Architectural Associates, Inc. ("Company").
2. Identification of Parties. Whenever in this Agreement the terms "you" or "your"
aze used, reference is'being made to you, the Employee. Whenever the term "Company" is used,
reference is being made to Scholl Sowers Garner Saylor Architectural Associates, Inc. and all
of its successors and assigns.
3. Consideration for Agreement. In consideration of the bonus payment which you
have received in conjunction with the execution of this Agreement and other good and valuable
consideration, the sufficiency of which you hereby acknowledge, you agree to the following
terms and conditions.
4. Agreement Not to Disclose Confidential Information.
(a) You acknowledge that the following items (collectively referred to as
"Confidential Informatiori') used in the Company's business are secret, confidential,
unique and valuable, were developed by the Company at great cost and over a long period
of time, and that disclosure or use of the Company's Confidential Information to or by
anyone other than the Company's officers, agents, or authorized employees will cause the
Company irreparable injury. The Company's Confidential Information includes:
(i) Client lists, prospect call lists, and other confidential customer
data;
(ii) Price lists, vendor lists, computer printouts, accounts receivable
reports, revenue reports and similar financial information;
(iii) Proposals, contracts, ]eases, rental agreements and marketing
information;
(iv) Architectural and engineering drawings, specifications and
computer files;
(v) Employee lists; and
(vi) Such other Company information designated as confidential,
propriety and/or trade secret to which you gain access during your employment.
(b) Except as required by the performance of your duties as an employee of
the Company, you agree not to disclose to anyone the Company's Confidential
Information, whether such information is developed before or after the date of this
Agreement.
(c) The restrictions against disclosure contained in this Agreement apply
during and after your employment with the Company.
(d) The restrictions against disclosure contained in this Agreement also apply
to Confidential Information developed by you while employed by the Company.
(e) Upon termination of your employment for any reason, you will promptly
deliver to the Company all tangible objects containing Confidential Information,
including all copies thereof, whether prepazed by you or others, which you possess or
have under your control.
(f) Upon termination of your services for any reason, you will promptly
deliver to the Company all computer systems, hardware, softwaze, equipment, machines
and property of any kind belonging to the Company, which you possess or have under
your control.
5. Restriction Against Competition.
(a) You agree that throughout the term of your employment with the
Company and for a period of two (2) yeazs thereafter, you will not, individually or in
conjunction with any other person, or as an employee, agent, representative, partner or
holder of any interest in any other person, firm, corporation or other association:
(i) Solicit, entice, induce any person, firm or corporation, who or
which at any time during your employment with the Company was a customer of
the Company, to become a client or customer of any other person, firm or
corporation;
(ii) Authorize or direct any person, firm or corporation to solicit, entice
or induce any person, firm or corporation, who or which at any time during your
employment with the Company was a customer of the Company, to become a
customer of any other person, firm or corporation;
2
,, , ,
(iii) Solicit, entice or induce any person who presently is or at any time
during your employment with the Company shall be an employee of the
Company, to become employed by any other person, firm or corporation, and you
shall not approach any such employee for such purpose or authorize or direct the
taking of such actions by any other person;
(iv) Solicit, participate in, directly or indirectly, or accept business
similar to any aspect of the Company's business from any person, firm or
corporation, who or which was a customer or prospect of the Company during
your employment with the Company.
Nothing in the foregoing shall prohibit you, after termination of employment with
the Company from engaging in any business that is not in competition with the Company,
nor at any time during or after your employment by the Company shall you be prohibited
from investing in the securities of any corporation having securities listed on a national
security exchange, provided that such investment does not exceed five percent (5%) of
any class of securities of any corporation engaged in businesses in competition with the
Company, and provided that such ownership represents a passive investment and that
neither you nor any group of persons inc]uding you, in any way, either directly or
indirectly, manages or exercises control over any such corporation, guazantees any of its
financial obligations or otherwise takes part in its business, except in the exercise of your
rights as a shareholder.
6. Remedies.
(a) You acknowledge that the restrictions contained in this Agreement aze
reasonable and necessary in view of the nature of the Company's business and in order to
protect the legitimate business interests of the Company. You further acknowledge that
your vio]ation of the restrictions, or any of them, would result in irrepazable injury to the
Company. Therefore, you agree that, in the event of a breach or threatened breach by you
of the provisions of Pazagraphs 4 or 5, the Company shall be entitled to obtain from any
court of competent jurisdiction, preliminary and permanent injunctive relief restraining
you from any violation of the foregoing.
(b) You further agree that if the Company institutes legal action to enforce any
provision of this Agreement, you will pay the Company's attorney's fees and litigation
costs incurred in enforcing the Agreement.
(c) Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach or threatened
breach.
3
(d) The parties acknowledge their intention that the Company shall have the
broadest possible protection of the value of the Company's business in the Company's
trade area, consistent with public policy. Should a court determine that the durational
restrictions onpost-employment competition are broader than public policy will permit, it
will not violate the intent of the parties if such court modifies the restriction(s) to the
maximum temporal duration permitted under public policy.
7. At Wil! Employment. This Agreement is not intended to create an employment
relationship between you and the Company for any definitive term. At all times, your
employment with the Company shall be and remain on an at-will basis. That is, your
employment can be terminated at any time at the will of either you or the Company.
8. Survival. The provisions of Paragraphs 5 and 6 herein shall survive the
tennination of your employment irrespective of the time, manner or cause of such termination
and regardless of the reason for such termination.
9. Miscellaneous.
(a) This Agreement cancels and supersedes any and all prior agreements and
understandings between or among any and all of the parties hereto with respect to your
employment with the Company. This Agreement may not be modified in any respect
except in a writing signed by the parties hereto.
(b) All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties hereto, except
that your duties and responsibilities hereunder are of a personal nature and shall not be
assignable or delegatable, in whole or in part, by you.
(c) If any provision of this Agreement or its application to anyone or under
any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall not affect or impair in any way the validity, legality or
enforceability of the remainder of this Agreement and such shall not invalidate or render
unenforceable such provision or application in any other jurisdiction.
10. Control/ing Law. The validity, interpretation, construction, performance and en-
forcement of this Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
4
~ ` f ~ i
IN WITNESS WHEREOF, the parties have signed this Agreement on the date set forth above.
WITNESS:
Employee
ATTEST:
COMPANY
By:i ~~~~ ~ ic
Name/Title
nrom~wo~y~r~~
VERIFICATION
I, Bruce E. Garner, Managing Principal, verify that the
R~
statements made in the foregoing document are true and correct to
the best of my knowledge, information and belief. I understand
that false statements herein are made subject to the penalties of
18 Pa.C.S. §4904, relating to unsworn falsification to authori-
ties.
~~_~
Bru e E. Garner
Dated: June 2$ 2001
CASE NO: 2001-04176 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SOWERS GARNER SAYLOR ARCHITECT
VS
SCHOLL LEROY R JR ET AL
DOUGLAS DONSEN
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
LEROY R JR
the
DEFENDANT at 1025:00 HOURS, on the 12th day of July 2001
at 1230 HOLLY PIKE
CARLISLE, PA 17013
LEROY R SCHOLL JR
by handing to
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 3.25
Affidavit .00
Surcharge 10.00
.00
31.25
Sworn and Subscribed to before
me this d w/±= day of
Un. ~. .26v 1 A.,D .
-~
P othonotary '
So Answers:
'~~'~ ~~
R. Thomas Kline
07/13/2001
MCNEES WALLACE & NURICK
By : Oi.-r sr.~_.~.
eputy Sheriff
a
CASE NO: 2001-04176 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SOWERS GARNER SAYLOR ARCHITECT
VS
SCHOLL LEROY R JR ET AL
DOUGLAS DONSEN
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
CIANFICHI ROBERT the
DEFENDANT at 1025:00 HOURS, on the 12th day of July 2001
at 1230 HOLLY PIKE
CARLISLE, PA 17013 by handing to
LEROY R SCHOLL JR
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
nn
~~.~~
Sworn and Subscribed to before
me t/hlis ,2~'~ day of
t I, ~2UV! A.D.
~9' r thonotary
So Answers:
R. Thomas Kline
07/13/2001
MCNEES WALLACE & NURICK
By: ~~~~
Deputy Sheriff
Y
CASE NO: 2001-04176 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SOWERS GARNER SAYLOR ARCHITECT
VS
SCHOLL LEROY R JR ET AL
DOUGLAS DONSEN
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
CIANFICHI & SCHOLL ARCHITECTURAL ASSOCIATES the
DEFENDANT at 1025:00 HOURS, on the 12th day of July 2001
at 1230 HOLLY PIKE
CARLISLE, PA 17013 by handing to
LEROY R SCHOLL JR
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this ~L`/ ~ day of
~,, p o2rrt7 / /~.~A~. D~
-fir tho otary
So Answers:
R. Thomas Kline
07/13/2001
MCNEES WALLACE & NURICK
By ° cC~C,Q
ow-r
Deputy Sheriff
`~i
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff CIVIL ACTION -LAW
v.
LEROY R. SCHOLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCHOLL
ARCHITECTI7RAL ASSOCIATES, LLC;
Defendants
NO. 01-4176 CIVIL TERM
NOTICE TO PLEAD
TO: SOWERS, GARNER, SAYLOR ARCHITECTS ENGINEERS, INC., Plaintiff;
and JONATHAN H. RUDD, ESQUIRE, Their Attorney:
You aze hereby notified to file a written response to the enclosed New Matter within
twenty (20) days from service hereof or a judgment may be entered against you.
METTE, EVANS & WOODSIDE
BY
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
DATED: August 29, 2001
1
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff CIVIL ACTION -LAW
v.
LEROY R. SCHOLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
NO. 01-4176 CIVIL TERM
NOTICE TO PLEAD
TO: SOWERS. GARNER, SAYLOR ARCHITECTS ENGINEERS, INC., Plaintiff;
and JONATHAN H. RUDD, ESQUIRE, Their Attorney:
You are hereby notified to file a written response to the enclosed 2252(d) New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
METTE, EVANS & WOODSIDE
By ,
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
DATED: August 29, 2001
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff CIVIL ACTION -LAW
v.
NO. 01-4176 CIVIL TERM
LEROY R. SCROLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCROLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
ANSWER AND NEW MATTER OF DEFENDANTS,
LEROY R. SCROLL, JR., ROBERT CIANFICHI and CIANFICHI & SCROLL
ARCHITECTURAL ASSOCIATES. LLC, TO PLAINTIFF'S COMPLAINT
AND NOW, come the Defendants, Leroy R. Scholl, Jr., Robert Cianfichi, and Cianfichi
& Scholl Architectural Associates, LLC, by and through their attorneys, Mette, Evans &
Woodside, and aver the following in response to the Plaintiff's Complaint:
Admitted.
2. Admitted.
3. Denied. Defendant Robert B. Cianfichi's correct address is 761 Dogwood
Terrace, Boiling Springs, Pa., 17007.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied. The averments of paragraph 8 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is required, it is admitted
only that Scholl was compelled to execute the document attached as Exhibit "A" to the
Complaint. Any inference of paragraph 8 seeking to chazacterize the legality or sufficiency of
that document in any way is hereby specifically denied.
9. Admitted in part, denied in part. It is admitted only that on April 14, 1998, Scholl
was one of the four named stockholders of SSGS. It is denied that the stockholders owned equal
interests. To the contrary, the four had joined the firm at different times, and equity in respective
interests in the firm was not yet adjusted.
10. Denied. Upon reasonable investigation, the Defendants are unawaze of whether
the other three stockholders executed identical documents to that executed by Scholl. The
averments of paragraph 8 and 9 are incorporated herein by reference as further response.
11. Denied. The auerments of pazagraph 11 constitute conclusions of law to which no
responsive pleading is required by the Pa. R.C.P. To the extent a response is deemed required,
the document, being an instrument in writing, speaks for itself and, to the extent that the
averments of paragraph 11 are inconsistent therewith, they are denied. Byway of further
response, it is denied that consideration was ever given or received with regard to the alleged
agreement.
12. The averments of pazagraph 12 constitute conclusion of law to which no
responsive pleading is required by the Pa. R.C.P. By way of further response, the alleged
agreement, being an instrument in writing, speaks for itself and, to the extent that the averments
-2-
of paragraph 12 of the Complaint are inconsistent therewith, they aze denied.
13. The averments of paragraph 13 constitute conclusion of law to which no
responsive pleading is required by the Pa. R.C.P. Byway of further response, the alleged
agreement, being an instrument in writing, speaks for itself and, to the extent that the averments
of paragraph 13 of the Complaint aze inconsistent therewith, they are denied.
14. Denied. The averments of paragraph 14 constitute conclusion of law to which no
responsive pleading is required by the Pa. R.C.P. To the extent that a response is required, any
inference that Scholl voluntarily resigned his employment and other positions with SSGS is
specifically denied. To the contrary, Scholl was forced out of his position as a Director of the
company and dischazged from employment. As of this writing, Scholl has received no value
from this corporate stock.
15. Denied. It is denied that at a meeting held on May 11, 1999 between Scholl and
the other three owners of SSGS Scholl was reminded of the restrictions against competition
contained in the agreement. On the contrary, Scholl was invited to a meeting on May 11, 1999
assuming the purpose was to plan for a scheduled business meeting of May 12, 1999. Scholl was
then advised that he was being discharged by the corporation, removed from his position of
directorship and was directed to leave the building by 11:00 a.m. In addition to all of these facts,
Scholl was advised of SSGS' position regarding non-compete clauses.
16. Admitted.
17. Denied. It is denied that in or about December 1999 Scholl began working with
Cianfichi as is inferred. After his discharge by SSGS, Scholl obtained employment at Lobar, Inc.
and, while with Lobar, retained Cianfichi to assist with some projects. This experience led to a
-3-
loose association of Cianfichi and Scholl, and evolved into the eventual formation of Cianfichi &
Scholl.
18. Admitted.
19. Admitted.
20. Denied. Ludwig did not become associated with Cianfichi & Scholl in
September, but October of 2000.
21. Admitted.
22. Denied. Starting date was May 22, 2000.
23. Admitted.
24. Denied. Starner did not become associated with Scholl until January of 2000.
She left Cianfichi & Scholl in February 2001.
COUNT I -BREACH OF CONTRACT
SGS v. Scholl
25. Defendant Scholl incorporates herein by reference paragraphs 1-24 above as if
fully set forth herein.
26. Denied. It is denied that prior to May 11, 1999 SSGS had along-standing
relationship with the Redevelopment Authority of Cumberland County. It is further denied that
the Redevelopment Authority was chazacterized internally or otherwise as one of SSGS' major
clients and that SSGS had performed "numerous" projects for the Redevelopment Authority prior
to May 11, 1999. To the contrary, at all relevant time frames the SSGS connection with the
Redevelopment Authority was through the efforts of Scholl and because, upon information and
-4-
belief, the Authority's recognition and appreciation of Scholl's talents and expertise in
architectural rehabilitation of older buildings and related projects. Rehabilitation of existing
structures represented the majority of Authority work performed by SSGS, and such work was
predominantly performed by Scholl, or at his direction.
27. Admitted.
28. Denied. Upon reasonable investigation, the answering Defendant Scholl is
without knowledge as to whether or not SGS submitted a proposal on January 5, 2000 to the
Redevelopment Authority.
29. Denied. Upon reasonable investigation, the answering Defendant Scholl is
unaware of whether or not, as is averred in paragraph 29 of the Complaint, SGS was notified by
the Redevelopment Authority that it was going to award the contract to Cianfichi for
architectural services based on his association with Scholl. By way of further response, it is
denied that Scholl was employed in January of 2000 by Cianfichi.
30. Denied. Upon reasonable investigation, the answering Defendant Scholl is
without knowledge as to the averments of paragraph 30. To the extent that a response is
required, it is believed that the Redevelopment Authority was interested in retaining Scholl
because of his unique skills and abilities with regard to architectural services and design in the
rehabilitation of historic and old structures; experience and background which none of the
remaining principals of SGS possessed.
31. Denied. The averments of paragraph 31 constitute conclusions of law to which no
responsive pleading is required by the Pa. R.C.P. To the extent that a response is deemed
required, it is specifically denied that Lee Scholl was materially involved in soliciting, enticing
-5-
and inducing the Redevelopment Authority to award the contract to Robert Cianfichi. To the
contrary, Scholl was not materially involved in any manner or provided any inducement to the
Redevelopment Authority other than the fact that his knowledge, experience and expertise in the
particular field was apparently known, acknowledged and appreciated by Redevelopment
Authority staff.
32. Admitted in part, denied in part. It is admitted only that SGS notified Scholl's
counsel that it believed that the pending retention of Cianfichi was a violation of the agreement
and demanded that Scholl decline any involvement with the representation. Any inference that
SGS' overreaching and misplaced interpretation of the agreement was in any way valid is
specifically denied. Byway of further response, both Scholl and Cianfichi sought independent
legal counsel regarding SGS' interpretation of the agreement and each was advised that SGS'
interpretation of the agreement was inaccurate, unlawful and unenforceable. Further, Scholl and
Cianfichi immediately advised the Redevelopment Authority of SGS' interpretation and
demands, and in no way sought to influence the Authority in a manner in which it handled SGS'
complaints.
33. Denied. It is denied that Scholl ignored SGS's demand and continued to perform
services for the Redevelopment Authority; on the contrary, Scholl advised the Redevelopment
Authority of SGS's demand and, upon information and belief, the Redevelopment Authority
contacted SGS. Cianfichi and Scholl advised the Authority that they would not perform the
project if the Authority preferred. As a result of the Redevelopment Authority's contact with
SGS, and after an analysis of SGS's concerns, the Redevelopment Authority resolved apparently
to continue with the retention of Cianfichi.
-6-
34. Admitted in part, denied in part. It is admitted only that Scholl contacted the
Redevelopment Authority to report SGS's demand that Scholl cease working for a living. It is
specifically denied that any agreement gave SGS the power over Scholl's ability to make a
living. By way of further response, with regard to the allegation that the Redevelopment
Authority contacted SGS and informed it that the relationship between SGS and the Authority
had been jeopardized, upon information and belief no such threat was ever conveyed by the
Redevelopment Authority to SGS.
35. Denied. The averments of paragraph 35 constitute conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a.response is required, there were some
minor miscellaneous projects performed either by Scholl, or at the direction of Scholl, for the
school district. The inference that these minor miscellaneous projects made the school district a
"customer" of SSGS as is averred in paragraph 35 is overreaching and misplaced and therefore
denied.
36. Denied. The auerments of paragraph 36 constitute conclusions of law to which no
response is required by the Pa. R.C.P. Byway of further response, at no time within two years of
his discharge by his former partners did Scholl solicit, entice and/or induce the Carlisle Area
School District to become a client or customer of Cianfichi or C & S.
37. Admitted.
38. Admitted.
39. Denied. Answering Defendant is without knowledge of any "other projects."
-7-
40. Denied. It is denied that prior to May 11, 1999, and while Scholl was employed
by SSGS, the Carlisle Borough was a customer of SSGS. On the contrary, the only work related
to the Borough that Scholl recollects predated the formation of SSGS.
41. Denied. The averments of paragraph 41 constitute conclusions of law to which no
response is required by the Pa. R.C.P. Byway of further response, at no time within two years of
his discharge by his former partners did Scholl solicit, entice and/or induce the Carlisle Borough
to become a client or customer of Cianfichi or C&S.
42. Denied. It is denied that Cianfichi or C&S provided architectural services to the
Borough for the stated renovations. To the contrary, the renovations to the building are planned
and Have not yet occurred. A building survey was conducted and C&S was involved in that
survey.
43. Admitted with clarification. The only such services involve a feasibility study for
relocation of the police force and was a minor project.
44. Admitted.
45. Denied. It is specifically denied that since becoming associated with Robert
Cianfichi and/or C&S Scholl has participated in solicitation of the Diocese of Harrisburg to
become a client or customer of Robert Cianfichi and/or C&S.
46. Denied. It is specifically denied that Scholl has authorized and directed
employees of C&S to solicit the Diocese of Harrisburg to become a client of Robert Cianfichi
and/or C&S. To the contrary, no such authorization or direction or solicitation has ever occurred.
47. Denied. The averments of paragraph 47 constitute conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required,
-8-
any inference that Scholl attempted to hire Ludwig, Newlin or Starner while any of them were
still employed by SSGS is specifically denied. Any inference that anyone who was ever
employed at SSGS is forever precluded by the fiat of SGS management from ever working after
leaving SSGS or ever working with C&S is denied.
48. Denied. It is specifically denied that Scholl has authorized and/or directed
Ludwig to solicit employees of Plaintiff to become employees of C&S.
49. Denied. It is specifically denied that Scholl has authorized and/or directed
Ludwig to contact certain of Plaintiff's clients to solicit their business for C&S. To the contrary,
upon information and belief, employees of the Diocese inquired with Tom Ludwig after he had
left SSGS from time-to-time to inquire on Ludwig's status. At no time was Ludwig encouraged
to or directed to contact the Diocese. The only contacts made by Ludwig with the Diocese were
undertaken at the request of the Diocese.
50. Admitted.
51. Denied. The averments of pazagraph 51 constitute conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, it is
specifically denied that at any time when associated with Cianfichi or C&S Scholl has solicited
Rettew Associates to hire Scholl or those companies. On the contrary, prior to being associated
with Cianfichi, and aYler his dischazge by the Plaintiff, Scholl contacted Rettew with regard to
retaining Rettew to perform work. By way of further response, Defendant is unaware of any
claimed or alleged restrictions upon Scholl via the alleged agreement which would deny him the
opportunity to do business with companies that may do business with SSGS.
-9-
52. Denied. The averments of paragraph 52 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required,
answering Defendant Scholl is unaware of any restrictions upon anyone else to do business with
Rettew Associates.
53. Denied. The averments of paragraph 53 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required,
answering Defendant Scholl has neither directly or through individuals that he authorized or
directed attempted to solicit business at the County of Cumberland.
54. Denied. The averments of paragraph 54 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, after his
discharge by SSGS, Scholl inquired with Fry Communications regarding the possibility that Fry
may retain a facilities manager. This would involve soliciting individual employment by Fry,
not the type performed for Fry by SSGS.
55. Denied. The averments of paragraph 55 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, it is
denied that at any relevant time frame Scholl ever directly, or through individuals that he
authorized or directed, attempted to solicit the business of other entities or individuals who are
customers of SSGS while Scholl was employed there.
56. Denied. The averments ofpazagraph 56 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, any
inference of paragraph 56 that it was improper for C&S and/or Scholl to accept business from
any entity or individual which had ever been a customer of SSGS while Scholl was employed
-10-
there is denied as a proper or reasonable interpretation of the agreement. To the contrary, at all
times relevant to the instant action, Scholl, Cianfichi and any organization they were related to, at
all times conducted themselves in a manner which they believed and intended to be in
compliance with any reasonable wishes of SGS regarding competition.
57. Denied. The averments of pazagraph 57 are conclusions of law to which no
response is required by the Pa. R.C.P.
58. Denied. The averments of paragraph 58 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, while
believing that the Agreement is invalid, overreaching and unconscionable, Scholl has at all
relevant times attempted to conduct himself in a manner which would not be viewed as violative
by his former partners, and therefore, any alleged resulting breach was not knowing, willing or
voluntary.
59. Denied. The averments of paragraph 59 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is required, it is denied that
Plaintiff has suffered any loss of income as a result of any action of Scholl. On the contrary,
Scholl has never breached the agreement and, furthermore, the Plaintiff cannot have suffered loss
as a result of Lee Scholl making a living if the Plaintiff indeed correctly discharged Scholl for the
reasons it gave on May 11, 1999.
60. Denied. The averments of paragraph 60 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is required, it is specifically
denied that C&S and Scholl have received income for which they would not have received but
for breaches of the agreement. On the contrary, no breach of the agreement occuned by Scholl
-11-
or C&S.
61. Denied. The averments of paragraph 61 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, it was
specifically denied that even if the allegations of Plaintiff's Complaint were true, that the
measure of damages alleged in paragraph 61 would be properly recoverable.
62. Denied. The averments of paragraph 62 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is required, it is denied that
the Plaintiff is entitled to recover legal expenses, including attorneys' fees incurred in pursuing
this action. There is no contractual right or otherwise for the collection of such fees and any
prayer for such should be denied.
WHEREFORE, answering Defendant, Leroy R. Scholl, Jr., respectfully prays that this
Court will enter judgment in his favor dismissing Count I of Plaintiffls Complaint, together with
an award of all costs and such other relief as the Court deems just and reasonable under the
circumstances.
COUNT II -INTERFERENCE WITH CONTRACTUAL RELATIONS
SGS v. Robert Cianfichi and C&S
63. The answering Defendant incorporates herein by reference the responses to
paragraphs 1-62, above, as if fully set forth herein.
64. Denied. The averments of paragraph 64 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed required, at no
time relevant to the dispute have Cianfichi or C&S concurred with or been aware of the
-12-
interpretation that Plaintiff apparently makes upon the alleged agreement between Plaintiff and
Scholl. By way of further response, Cianfichi has sought legal counsel with regard to the alleged
agreement and was satisfied upon his examination with counsel that the agreement was
overreaching, illegal and invalid. Despite that knowledge, Cianfichi in good faith attempted to
conduct himself and his business interests in a manner which would not be viewed as violative of
the alleged agreement by the Plaintiff.
65. Denied. The averments of paragraph 65 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that Cianfichi and C&S have actively engaged in soliciting, enticing and
inducing persons, firms and/or corporations who are customers of Plaintiff while Scholl was
employed there to become customers of Robert Cianfichi and C&S. To the contrary, at all times
relevant to the instant action, and during the alleged time flame of the alleged agreement,
Cianfichi. attempted to conduct himself and the business of C&S in a manner consistent with his
desire to avoid conflict with SGS. By way of further response, Cianfichi and C&S are not parties
to any agreement with SSG5, or SGS and, therefore, are not subject to its terms.
66. Denied. The averments of paragraph 66 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is denied that the alleged agreement, even if legally enforceable, would prevent Cianfichi from
accepting business ftom persons, firms and/or corporations who wish to retain him or his partner
or employees.
-13-
67. Denied. The averments of pazagraph 67 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that Cianfichi and C&S have actively solicited, enticed and induced
persons who are employees of Plaintiff while Scholl was employed there to become employed or
otherwise associated with Robert Cianfichi and/or C&S. Byway of further response, the
Plaintiff s apparent interpretation of the alleged restrictions contained in the agreement differ
from that of Scholl and Cianfichi. While Scholl and Cianfichi, at all times relevant to the
Complaint, attempted to conduct themselves in a manner which would avoid conflict with SGS,
it is in no way admitted and is specifically denied, that the agreement, as alleged by SGS,
effectively prevented Scholl or anyone that he was associated with from earning a living or from
contracting with persons who chose to select Scholl and/or Cianfichi despite not being solicited
or induced to do so by Scholl and Cianfichi.
68. Denied. The averments of paragraph 68 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that Cianfichi and C&S at any time conducted themselves in a manner
constituting wilful and deliberate interference with the contractual relationship between Plaintiff
and Scholl.
69. Denied. The averments of paragraph 69 are conclusions. of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that Cianfichi and C&S have engaged in any torinous conduct and that,
furthermore, any such conduct has been knowing, willing and voluntary.
-14-
70. Denied. The averments of paragraph 70 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is denied that Cianfichi and C&S have interfered with Plaintiffs contractual arrangement with
Scholl or that Plaintiff has consequently suffered loss of income.
71. Denied. The averments of paragraph 71 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is denied that Cianfichi or C&S interfered with Plaintiffs contractual arrangement or that
Cianfichi, C&S and Scholl have received income which they would not have received but for
such conduct.
72. Denied. The averments of paragraph 72 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required,
Plaintiffs allegations at paragraph 72 misstate and overreach the recoverable measure of
damages even if such cause of action were valid.
WHEREFORE, answering Defendants, Robert Cianfichi and C&S, respectfully pray
that this Court will enter judgment in their favor dismissing Count II of Plaintiff's Complaint,
together with an award of all costs and such other relief as the Court deems just and reasonable
under the circumstances.
COUNT III -INTERFERENCE WITH CONTRACTUAL RELATIONS
SGS v. Scholl, Robert Cianfichi and C&S
73. The answering Defendant incorporates herein by reference the responses to
paragraphs 1-72, above, as if fully set forth herein.
-15-
74. Denied. The averments of paragraph 74 aze conclusions of law to which no
response is required by the Pa. R.C.P.
75. Denied. The averments of paragraph 75 are conclusions of law to which no
response is required by the Pa. R.C.P.
76. Denied. The averments of paragraph 76 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required,
Scholl, Cianfichi and C&S are aware of the alleged agreement that SG5 believes it has imposed
upon its former employees, and at all times relevant to the instant action have attempted to
conduct themselves in a manner that would not be violative. of any reasonable legal interpretation
of that agreement.
77. Denied. The averments of paragraph 77 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that the answering Defendants have actively authorized, directed and
encouraged Ludwig to solicit, entice and induce persons, firms and/or corporations who are
customers of Plaintiff during Ludwig's employment with Plaintiff to do business with C&S. To
the contrary, at all times relevant to the instant action, the answering Defendants have avoided
any such activities.
78. Denied. The averments of paragraph 78 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that Cianfichi and C&S have knowingly, willingly and voluntarily engaged
in any tortuous conduct.
-16-
79. Denied. The averments of paragraph 79 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is denied that Cianfichi and C&S have interfered with Plaintiff's contractual arrangement with
Scholl or that Plaintiff has suffered the loss of income.
80. Denied. The averments of pazagraph 80 are conclusions of law to which no
response is required by the Pa. R.C.P.
81. Denied. The averments of pazagraph 81 are conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is denied that Cianfichi or C&S interfered with Plaintiff's contractual arrangement or that
Cianfichi, C&S and Scholl have received income which they would not have received but for
such conduct.
82. Denied. The averments of paragraph 82 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required,
Plaintiff s allegations at paragraph 82 misstate and. overreach the recoverable measure of
damages even if such cause of action were valid, which is denied.
WHEREFORE, answering Defendants, Scholl, Robert Cianfichi and C&S, respectfully
pray that this Court will enter judgment in their favor dismissing Count III of Plaintiff's
Complaint, together with an award of all costs and such other relief as the Court deems just and
reasonable under the circumstances.
-17-
COUNT IV -BREACH OF FIDUCIARY DUTY
SGS v. Scholl
83. The answering Defendant incorporates herein by reference the responses to
paragraphs 1-82, above, as if fully set forth herein.
84. The averments of pazagraph 84 are conclusions of law to which no response is
required by the Pa. R.C.P. To the extent that a response is deemed to be required, it is denied
that answering Defendant Scholl was ever the President and Chairman of the Board of Directors
of Plaintiff Sowers, Garner, Saylor Architects Engineers, Inc.
85. The averments of pazagraph 85 are conclusions of law to which no response is
required by the Pa. R.C.P. To the extent that a response is deemed to be required, it is denied
that Scholl was ever an officer and director of Plaintiff.
86. Denied. The averments of paragraph 86 aze conclusions of law to which no
response is required by the Pa. R.C.P. To the extent that a response is deemed to be required, it
is specifically denied that for any relevant period of time prior to May 11, 1999 Scholl failed to
act in a manner in the best interests of the corporation and with the care, skill and diligence that a
person of ordinary prudence would use under similar circumstances. By way of further response:
a. It is specifically denied that Scholl repeatedly mismanaged projects for
Plaintiff; Scholl, on the contrary, managed projects consistent with the philosophy and directions
of firm collective management, and was never employed by Plaintiff;
b. It is specifically denied that Scholl failed to devote sufficient time and
effort to his architectural practice and performed substantially less work than the other officers
and shareholders of Plaintiff; to the contrary, Scholl devoted sufficient time and performed no
-18-
less work or service than any other shareholder at SSGS;
c. It is specifically denied that Scholl failed to generate significant new work
for the benefit of the Plaintiff; by way of further response, Scholl was never employed by the
Plaintiff;
d. It is specifically denied that Scholl failed to accept responsibility for the
management ofprojects in the Plaintiff's business; to the contrary, Scholl was never employed
by the Plaintiff; while at SSGS, Scholl managed numerous projects;
e. It is specifically denied that Scholl lacked organization in his architectural
practice; to the contrary, it is unclear what is meant by a lack of organization in architectural
practice; to the contrary, Scholl at all times was organized, consistent with the expectations that
one would have of someone in the architectural practice with SSGS;
f. It is specifically denied that Scholl failed to properly lead project teams
under his control; to the contrary, Scholl consistently properly lead project teams under his
control consistent with his method and style of management and control;
g. It is specifically denied that Scholl failed to properly utilize, train and
develop Plaintiff's staff and members of his project team at SSGS; to the contrary, at all times
Scholl properly utilized, trained and developed staff and members of his project team which is
evidenced by the fact that people who were later discharged by SGS have. sought employment
with Cianfichi & Scholl, and staffmembers trained by him were often "borrowed" by other
principles at SSGS;
h. It is specifically denied that Scholl lacked motivation in his architectural
practice;
-19-
It is specifically denied that Scholl failed to generate billings
commensurate with his compensation and distributions from Plaintiff as compared to the billings
generated by the other officers and shareholders who were actively practicing architecture; to the
contrary, Scholl's generation of billings was commensurate with his compensation according to
the manner in which the SSGS corporation managed itself and it is denied that the benchmark for
a measure of generation of billings was in comparison with other partners with disparate and
different practices;
j. It is specifically denied that Scholl failed to make reasonable efforts to
collect amounts owed to Plaintiff for projects managed by Scholl; to the contrary, Scholl made
reasonable efforts to collect amounts owed to Plaintiff for projects managed by Scholl.
87. The averments of paragraph 87 are conclusions of law to which no response is
required by the Pa. R.C.P.
88. The averments of paragraph 88 are conclusions of law to which no response is
required by the Pa. R.C.P.
WHEREFORE, answering Defendant, Scholl, respectfully prays that this Court will
enter judgment in his favor dismissing Count IV of Plaintiff s Complaint, together with an award
of all costs and such other relief as the Court deems just and reasonable under the circumstances.
-20-
V. NEW MATTER
89. The Defendants incorporate herein by reference the responses to paragraphs 1-88,
above, as if fully set forth herein.
90. Defendant Leroy R. Scholl, 3r. was a founder of the architectural firms that
evolved and became Scholl, Sowers, Garner and Saylor Architects and Engineers.
91. Defendant Scholl's former partners, Sowers, Garner and Saylor, upon information
and belief, resolved to remove Scholl as a partner prior to May 11, 1999.
92. At no time prior to announcing to Scholl that they were seeking his removal from
the firm did Sowers, Garner and/or Saylor advise Scholl that they were concerned about his
performance or that they were considering his removal from the company that he had founded.
93. The name of Leroy S. Scholl was a significant asset to the company and his
reputation within the community as an architect and a businessman was of considerable benefit
to SSGS.
94. This is evidenced and confirmed by the fact that SSGS continued to use Lee
Scholl's name in the company name for in excess of four months after removing him from the
company.
95. Projects upon which Lee Scholl was the principal were significant projects for
SSGS.
96. It was the intent of management at SSGS when it discharged Scholl to prevent
him from practicing architecture for a living for a two year period after his removal from the
company.
-21-
97. Leroy R. Scholl did not resign from SSGS, he was told by his fellow shareholders
that they wished for his removal from the company and presented at that same meeting with a
resignation document to sign.
98. Scholl's co-principals in SSGS by that time (May 11, 1999) had allowed and
caused the working conditions at the practice to become so negative and uncomfortable that
additional employees beyond Scholl were either terrninated or left the company within a short
period of time.
99. It was the intent and interpretation of SSGS of the agreement (attached to the
Complaint at Exhibit "A") to prevent any former employee of SSGS from working in the field of
architecture, engineering or design for Scholl, Cianfichi or any other company that SSGS
perceived as a competitor.
100. SGS' position in attempting to enforce its agreement, and its interpretation of that
agreement with regard to Scholl, Cianfichi and any former employee of SSGS or SGS who has
sought or obtained employment in the appropriate fields with Cianfichi, Scholl or any
competitor, is overreaching, illegal and unenforceable.
101. The agreement to which Plaintiff s Complaint refers and attached as Exhibit "A,"
and upon which Plaintiff refers relies as the basis for this action, is invalid and unenforceable
under Pennsylvania law.
102. Plaintiff's action is barred because the agreement was entered under duress.
103. Plaintiff's action is barred by the Doctrine of Laches.
104. Plaintiff s action is barred by the Doctrine of Waiver and/or Estoppel.
105. Plaintiff s action is barred because of failure of consideration.
_22_
106. Plaintiff's action is barred for want of consideration.
107. Plaintiff's action is invalid because of impossibility of performance.
108. Plaintiff s Complaint fails to state a claim upon which relief maybe granted.
WHEREFORE, answering Defendants, Leroy R. Scholl, Robert B. Cianfichi and
Cianfichi, Scholl Architects Associates, LLC, respectfully pray that this Court will enter
judgment in their favor, and dismiss Plaintiffs Complaint, together with an award of all costs
and such other relief as the Court deems just and reasonable under the circumstances.
COUNTERCLAIM
COUNTI
Leroy R. Scholl, Jr. V. Sowers, Garner, Saylor
Architects Engineers, Inc. and
Dennis Sowers, Larrv Saylor And Bruce Garner. Individuals
109. The averments ofparagraphs 1-108, above, are incorporated herein by reference
and reasserted as if fully set forth herein.
110. At the time of his removal as President and shareholder in SSGS, Scholl was the
President of the corporation.
111. At the time of his removal on May 11, 1999, Scholl was apart-owner in the
building constructed at 1 Tyler Court, Carlisle, Pennsylvania, 17013, which was the principal
place of business of SSGS and is the current principal place of business of Sowers, Gamer,
Saylor Architects Engineers, Inc.
112. At no time has Scholl been provided with the value of his equity share in the
building and demand therefore is hereby made, including a demand for an accounting of the
-23-
value of building at the time of Scholl's discharge and removal from the practice.
WHEREFORE, answering Defendant, Leroy R. Scholl, Jr., demands judgment against
the counterclaim Defendants in an amount exceeding the threshold for compulsory arbitration in
Cumberland County, Pennsylvania.
COUNT II
Leroy R. Scholl v. SSGS and Dennis Sowers. Larry Saylor
and Bruce Garner. Individuals
113. The averments of paragraphs 1-112, above, are incorporated herein by reference
and reasserted as if fully set forth herein.
114. At the time of his removal on May 11, 1999 from the SSGS practice, and
subsequently, Scholl was provided with no accounting of the value of the corporation, nor
provided with his equity shaze in the company and demand therefore is hereby made.
WHEREFORE, answering Defendant, Leroy R. Scholl, Jr., respectfully prays that this
Court will enter an award in his favor in an amount in excess of the threshold for mandatory
arbitration in Cumberland County and against the Counterclaim Defendants, together with an
award of costs and such other relief as the Court deems just and appropriate under the
circumstances:
-24-
COiJNT III
Leroy R. Scholl v. Dennis Sowers and Larry Saylor
115. The averments of paragraphs 1-114, above, are incorporated herein by reference
and reasserted as if fully set forth herein.
116. From February 1988 until May 11, 1999 Scholl, Sowers and Saylor were partners
in S-3 Enterprises.
117. At no time has Scholl been provided with an accounting of and distribution of
assets for that partnership, demand for which is hereby made.
WHEREFORE, answering Defendant, Leroy R. Scholl, Jr., respectfully prays that this
Court will enter an award in his favor in an amount in excess of the threshold for mandatory
arbitration in Cumberland County and against the Counterclaim Defendants, together with an
award of costs and such other relief as the Court deems just and appropriate under the
circumstances.
METTE, EVAN5 & WOODSIDE
By
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
DATED: ~1,-~ ~~
-25-
VERIFICATION
I, Leroy R. Scholl, in the foregoing action execute this Verification; have read the foregoing
Answer with New Matter and to the extent that 'it contains facts supplied by me, they are hue and
correct to the best of my personal knowledge, information and belief. This Verification is made
pursuant to 18 Pa. C.S. §4904 relating to unsworn falsification tQ authorities.
.~? ~ a
Leroy choll
DATED: ~~a~~0 ~
:269534 1
VERIFICATION
I, Robert Cianfichi, hereby affirm that I am President of Cianfichi & Scholl Architectural
Associates, Inc., that I make this Verification on behalf of Cianfichi & Scholl Architectural
Associates, Inc., and in my individual capacity, that I am familiar with the facts and allegations
set forth in the foregoing Answer and New Matter. I have read the foregoing document and
hereby affirm that it is true and correct to the best of my personal knowledge, information and
belief. This Verification is made pursuant to 18 Pa. C.S. §4904 relating to unsworn falsification
to authorities.
c/~
Robe ianfichi
Dated:. August , 2001
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg,
Pennsylvania, with first-class postage, prepaid, as follows:
Jonathan H. Rudd, Esquire
McNEES, WALLACE & NURICK
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
METTE, EVANS & WOODSIDE
By
Dauid A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
DATED: August 29, 2001
w
~} (°-; ~
i" f>
r -
..
- U
ll
~`n
-< • -1
- - - - d _ --'~I H.:. . - _..~
l~~ ~
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff
v.
LEROY R. SCHOLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
CIVIL ACTION -LAW
NO. 01-4176 CIVIL TERM
PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANTS
TO THE PROTHONOTARY OF SAID COUNTY:
Please issue writs to join additional defendants upon the three following individuals under
the above-referenced caption identifying each as an additional defendant pursuant to Pa. R.C.P.
2252(a):
Dennis Sowers
Sowers, Garner, Saylor
Architects Engineers, Inc.
One Tyler Court
Carlisle, PA 17013
Larry Saylor
Sowers, Garner, Saylor
Architects Engineers, Inc.
One Tyler Court
Carlisle, PA 17013
Bruce Garner
Sowers, Garner, Saylor
Architects Engineers, Inc.
One Tyler Court
Carlisle, PA 17013
TTE, ~ ' OODSIDE
By~
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
DATED: September 7, 2001 Attorneys for Defendants
...~ --
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff
v.
LEROY R. SCHOLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
CIVIL ACTION -LAW
NO. 01-4176 CIVIL TERM
PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANTS
TO THE PROTHONOTARY OF SAID COUNTY:
wrf~ 1s~ ~aH a~d1iY'iwa.~ de~ndat3s
Please issue ~~,~,-upon the three following individuals under the above-
referencedcaption identifying each as an additional defendant pursuant to Pa. R.C.P. 2252(a):
Dennis Sowers
Larry Saylor
Bruce Garner
METTE, EVANS & WOODSIDE
By
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
DATED: September 7, 2001
Attorneys for Defendants
._ ...,
c `~' `
s
;~
.~;
- ~,
~
r t
'~t„j ~ ter.,..,:
.. :
3'~ ~ Vy
Z "r3
;,,~
C9>
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s) and
in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules
of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg,
Pennsylvania, with first-class postage, prepaid, as follows:
Jonathan H. Rudd, Esquire
McNEES, WALLACE & NURICK
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
METTE, EVANS & WOODSIDE
By
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
DATED: September 7, 2001
:271459 ]
a .
C1
r
~, u~
i!
-n a', ,-n ~,
{T1
~ .~
'
~L
~~
1
.,
,I-~
Z~ ,~.i;:;?
.
G. ~'~
s i.)
~~ ~ ~~~
~{ ~.
~G L2> "`'
_. ._.. 11
Cumberland County, ss
The Commonwealth of Pennsylvania to Dennis Sowers. Bruce Garner Larry G~a~ior
(Na~tne of Addvtional Defendant)
Sowers, Garner, Saylor Architects Engineers, Inc.
You are notified that Lerov R. Scholl, Jr.. Robert Cianfi hi and ~ n ~ h;
,. (Name (s) of Defendant (s) j
& Scholl Architectural Associates, LLC
~ (have) joined you as an additional defendant in this a;cti~on, which you are re-
quired to defend.
Date September 7, 2001
(0EA'L)
Dennis Sowers ~ - Eruce Garner Larry Saylor
Sowers, Garner, Saylor Sowers, Garner, Saylor Sowers, Garner, Saylor
Architects Engineers, Inc. Architects Engineers, Inc. Architects Engineers, Inc.
One Tyler Court One_Tyler Court One Tyler Court
Carlisle, PA 17013 Carlisle, PA 17013 Carlisle, PA 17013
9
Y ~
0
~ ~
H ~
~
O
0 rt
V N
z
~yl
~'~
'
d
.
a4i
~
d ~w ~
z N~
~ H
~~
'..J
a
k
r
0
n
m
0
E
m
H
N
G1
a
H
m
n
x
~~
rt ~N
A ~'
rt r~
C
H
m n
N r•
O pl
n p
r• M
~ n
m ~
N W
~,
o r
m r m
ro n n
~ o
o, r
~ ~
rt
N
r9i
n
x
w
rt
(D
n
rt
N
LTJ
p
p
N
h
N
H
n
0
0
H
i
a
r
n
C
w
r
`fin
~'3
v
0.
SOWERS, GARNER,
SAYLOR ARCHITECTS
ENGINEERS, INC.,
Plaintiff
v.
LEROY R. SCHOLL, JR.,
ROBERT CIANFICHI,
and CIANFICHI &
SCHOLL
ARCHITECTURAL
ASSOCIATES, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO.01-4176 CIVIL TERM
ORDER OF COURT
AND NOW, this 29~' day of April, 2002, upon consideration of Plaintiff's Motion
To Compel the Production of Documents and Answers to Interrogatories and for
Appropriate Sanctions, a Rule is hereby issued upon Defendants to show cause why the
relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
~~ll~"1 ~ Uf 1)fr"~N(~ -I
n t„
-- '.'ti
~t1 _', ~ ~ ~ .~__
_ _. .
Jonathan H. Rudd, Esq.
Diane M. Tokarsky, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Attorneys for Plaintiff
David A. Fitzsimons, Esq.
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Attorney for Defendants
r,~,,.~J ~mc~ec~ ~~3a~ea .
:rc
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
LEROY R. SCHOLL, JR.
No. 01 - 4176 Civil Term
ROBERT CIANFICHI, and CIVIL ACTION - LAW
CIANFICHI & SCHOLL .
ARCHITECTURAL ASSOCIATES, INC.,:
Defendants
PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS AND
ANSWERS TO INTERROGATORIES AND FOR APPROPRIATE SANCTIONS
AND NOW COMES, Plaintiff Sowers, Garner, Saylor Architects
Engineers, Inc. ("SGS"), by and through its attorneys, McNees,
Wallace & Nurick, LLC, and moves the Court to compel the
production of documents and answers to interrogatories, and for
appropriate sanctions. In support of this motion, Plaintiff
avers as follows:
1. Plaintiff commenced this action on July 9, 2001,
against Defendants Leroy R. Scholl, Jr. ("Scholl"), Robert
Cianfichi, and Cianfichi & Scholl Architectural Associates, LLC
("C & S"). Scholl was a former employee, owner and officer of
Plaintiff, at which time it was known as Scholl Sowers Garner
Saylor Architectural Associates, Inc. ("SSGS"). On or about
April 14, 1998, Scholl, as well at the other three owners of
SSGS, executed a "Confidentiality Agreement and Restriction
Against Competition" ("Agreement"). The Agreement contains
certain restrictions on competing with SSGS while employed by
SSGS and for two years thereafter. Scholl resigned from all of
positions with SSGS on May 11, 1999. Scholl subsequently became
affiliated with C & S. It is Plaintiff's position that Scholl
violated the Agreement by competing with Plaintiff during the two
years after he resigned from Plaintiff. Plaintiff has asserted
claims against Robert Cianfichi and C & S as a result of their
participation in Scholl's violation of the Agreement.
2. The Sheriff served the Complaint on all three defendants
on July 12, 2001. On July 19, 2001, Defendants' counsel called
Plaintiff's counsel and requested an extension until August 29,
2001, to answer the complaint, which extension was granted.
3. On August 29, 2001, Defendants answered the Complaint.
Defendants also filed counterclaims against Plaintiff, as well as
Dennis Sowers, Larry Saylor, and Bruce Garner, individually.
Plaintiff's counsel promptly called Defendants' counsel and
explained that he could not file a counterclaim against Dennis
Sowers, Larry Saylor, and Bruce Garner, individually, since these
three individuals were not parties to the action. Plaintiff's
counsel explained that the Defendants would first need to join
Dennis Sowers, Larry Saylor, and Bruce Garner, individually,
before they could file claims against these non-parties.
Defendants' counsel agreed that he had made a procedural error in
filing counterclaims against the three non-parties, and agreed to
promptly take steps to correct this procedural error so that
Plaintiff would not need to bother the Court with filing
preliminary objections to the improperly filed counterclaims.
4. Defendants subsequently had writs issued to join Dennis
Sowers, Bruce Garner, and Larry Saylor as additional defendants.
2
However, Defendants took no further action to file an additional
defendant complaint against Dennis Sowers, Bruce Garner, and
Larry Saylor, despite that Pa.R.Civ.P. 2252(b)(1) provides that:
"If the joinder is by writ the joining party shall file a
complaint within twenty days from the filing of the praecipe for
the writ."
5. After providing Defendants with over five months to
correct their counterclaim and file an additional defendant
complaint against Dennis Sowers, Bruce Garner, and Larry Saylor,
Plaintiff's counsel sent a letter to Defendants' counsel on
February 6, 2002, requesting that he file the corrected pleadings
within two weeks. (A copy of this letter is attached as Exhibit
A) .
6. Concurrently with its request that Defendants file
corrected pleadings, Plaintiff served Defendants with a Request
for Production of Documents and Set of Interrogatories on
February 5, 2002. (Attached as Exhibits B and C).
7. On February 13, 2002, Defendants' counsel sent
Plaintiff's counsel a letter indicating he would be in contact
with Plaintiff's counsel later in the week. (A copy of this
letter is attached as Exhibit D). After not hearing from
Defendants' counsel for almost two weeks, Plaintiff's counsel
called him on February 25, 2002, during which conversation
Defendants' counsel represented that he would promptly clean-up
the pleadings so that the matter could move forward.
8. On March 7, 2002, Plaintiff's counsel called and left
Defendants' counsel a message requesting that he call with the
3
status of his efforts to correct the pleadings. Defendants'
counsel called back on March 8, 2002, and represented that he
would have everything corrected by the end of the following week.
Plaintiff's counsel requested that he confirm this in writing.
Defendants' counsel then sent Plaintiff's counsel a letter dated
March 8, 2002 wherein he stated that: "I am indeed working on
amendments to the pleadings along the lines we discussed."
Defendants' counsel further stated that: "I am also working on
responses to your initial discovery which will provide answers to
those questions which can be answered at this stage of the
proceedings and are not objectionable." (A copy of this letter
is attached as Exhibit E).
9. Despite the representations made in the telephone
conversation on March 8, 2002, and letter of March 8, 2002, as of
April 2, 2002, Plaintiff's counsel had heard nothing further from
Defendants' counsel. Accordingly, on April 2, 2002, Plaintiff's
counsel called Defendants' counsel and asked when the corrected
pleadings would be filed and the discovery responses provided.
Defendants' counsel promised to send the documents by the next
week.
10. It has been over three weeks since Defendant promised
to send the corrected pleadings and overdue discovery responses,
and still nothing has been provided.
11. Although Plaintiff is hesitant to burden the Court with
this discovery dispute, it is apparent that without the Court's
intervention, the Defendants are not going to correct the
pleadings or provide discovery responses. It has now been almost
4
eight months since Defendants represented that they would correct
the procedural error made in filing counterclaims against non-
parties, and this still has not been done. Plaintiff is
concerned that without the Court's intervention, it might be
another eight months before anything is done to correct the
pleadings or provide responses to the outstanding discovery.
12. Under the circumstances, Plaintiff submits that
sanctions are appropriate. Pennsylvania Rule of Civil Procedure
4019 provides in part that:
Rule 4019. Sanctions
(a)(1) The court may on motion, make an appropriate order
if
(i) a party fails to serve answers, sufficient answers or
objections to written interrogatories under Rule 4005;
***
(vii) a party, in response to a request for production or
inspection made under Rule 4009, fails to respond that
inspection will be permitted as requested or fails to
permit inspection as requested.
(2) A failure to act described in subdivision (a)(1) may
not be excused on the ground that the discovery is
objectionable unless the party failing to act has filed an
appropriate objection or has applied for a protective order.
13. Considering Defendants' dilatory conduct in this
matter, and repeated unfulfilled representations that documents
would be provided, Plaintiff believes that an appropriate
sanction would be for Defendants to pay Plaintiff's attorneys'
fees in filing this motion. If the Defendants had done what they
repeatedly promised to do, Plaintiff would not have been required
to incur additional attorneys' fees requesting the Court to Order
5
the Defendants to simply comply with the Pennsylvania Rules of
Civil Procedure.
WHEREFORE, for all the foregoing reasons, Plaintiff
respectfully requests that the Court Order the Defendants to
respond to the outstanding discovery requests within twenty (20)
days of the Court's Order, and further requests that the Court
award Plaintiff a reasonable attorneys' fees for having to file
this motion.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
~~
Jon than H. Rudd
Di e M. Tokarsky
1 Pine Street
.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Dated: Aprild ~ 2002
6
VERIFICATION
I, Diane M. Tokarsky, Esquire, counsel for Sowers Garner
Saylor Architects Engineers, Inc., verify that the statements
made in the foregoing document are true and correct to the best
of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 PA.C.S.
§4904, relating to unsworn falsification to authorities.
lane M. To a sky, E 're
Date: April~~ 2002
VERIFICATION
I, Jonathan H. Rudd, Esquire, counsel for Sowers Garner
Saylor Architects Engineers, Inc., verify that the statements
made in the foregoing document are true and correct to the best
of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 PA.C.S.
§4904, relating to unsworn falsification to authorities.
. xuaa, Esquire
Date: April a 3 20
1~~
.'>
;. ~'~
I L .~
awv
MWN
McNees Wallace & Nurick LLC
attorneys at law
JONATHAN H. RUDD
DIRECT DIAL (717) 237-5405
E-MAIL ADDRESS: JRUDD@MWN.COM
February 6, 2002
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
RE: Sowers, Garner, Saylor Architects Engineers, Inc. v. Leroy R. Scholl, Jr., et al
Cumberland County No. 01-4176 Civil Term
Our Client No. 19338-0006
Dear David:
We have not heard from you since your letter of October 9, 2001. It was our
understanding based on your representations to Diane Tokarsky that you were going to
filieamended pleadings to correct the procedural error that you created when you filed your
answer and new matter on August 29, 2001. As Diane explained to you, it was procedurally
improper for you to file a counterclaim against Dennis Sowers, Larry Saylor and Bruce
Garner before they had been joined to this action. You agreed with Diane that you had
made a mistake, and agreed to correct your mistake by filing an additional defendant
complaint against these three individuals. You subsequently filed writs against Dennis
Sowers, Bruce Garner and Larry Saylor on September 7, 2001, which you sent to us a
month later on October 9, 2001. Under Rule 2252(b)(1), you were to have filed an
Additional Defendant Complaint within 20 days of filing the writs. Although it does not
surprise us that you did not file the required documents within twenty days, we expected to
receive the documents within five months.
We do not want to file preliminary objections to your answer, new matter and
counterclaim, nor rule you to file an Additional Defendant Complaint, but if you continue to
ignore this situation, we will have no choice. Please file an amended answer and new
matter and counterclaim which lists only the corporate plaintiff, and then file a similar
additional defendant complaint which lists the individuals as defendants. We can then
respond appropriately. Considering that we have already given you over five months to
make these corrections, we believe that there is no reason that you cannot file corrected
PO BOX 1166. 10O PINE STREET' HARRISBURG, PA 17108-1166 • TEL: 717.232.8000 • FAX: 717.237.5300 • www.MWN.coM
COLUMBUS, OH • HAZLETON, PA • WASHINGTON, DC
David A. Fitzsimons, Esquire
February 6, 2002
Page 2
pleadings within two weeks. Please let us know if that presents a problem. Hopefully, we
can get this case back on track and bring it to a prompt resolution.
Very truly yours,
McNEES WALLACE & NURICK LLC
add
JHR/1P
c: Bruce Garner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.
Plaintiff -
v. No. Ol - 4176 Civil Term
LEROY R. SCHOLL, JR.
ROBERT CIANFICHI, and CIVIL ACTION - LAW
CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, INC.,:
Defendant
PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
DIRECTED TO DEFENDANTS
In accordance with the Pennsylvania Rules of Civil
Procedure, please produce the following documents within thirty
(30) days.
For purposes of these Requests, the term "Company" refers to
Scholl, Sowers and Associates, Inc., which was incorporated in
1985, and whose name was changed to Scholl, Sowers, Garner,
Saylor Architectural Associates, Inc. in 1997, and whose name was
further changed to Sowers, Garner, Saylor Architects Engineers,
Inc. in 1999.
For purposes of these Requests, the term "Customer" refers
to any person, firm or corporation for whom the Company did any
work, regardless of the amount or complexity of the work
performed.
1. All documents regarding any work that you have done for
any person, firm or corporation who at any time during Scholl's
and Thomas Ludwig's ("Ludwig") employment with the Company was a
Customer of the Company.
2. All documents regarding the employment by any of the
Defendants of any person who at any time during Scholl's or
Ludwig's employment with the Company was an employee of the
Company. This request includes, but is not limited to, any
employment agreement, correspondence, payroll information, and
documents regarding work performed by such individual for either
of the Defendants.
3. All documents regarding or relating to money received
or to be received (account receivable) from any person, firm or a
corporation with whom you have done work after May il, 1999, who
was a Customer of the Company.
4. All documents regarding the employment by any of the
Defendants of Thomas Ludwig, Jeffrey Newlin, and Amy Starner.
5. All documents regarding any contacts that you have had
with any person, firm or corporation who at any time during
Scholl's or Ludwig's employment with the Company was a customer
of the Company.
6. All documents regarding the articles of incorporation
and bylaws of Cianfichi and Scholl Architectural Associates, LLC
7. All documents regarding the association and
relationship of Leroy R. Scholl, Jr. with Robert Cianfichi and/or
Cianfichi & Scholl Architectural Associates, LLC. This request
includes, but is not limited to, the shareholders' agreement, any
2
employment agreement, and any other document pertaining to the
above described relationship.
8. All documents regarding any authorization you have
given to any person, firm or corporation to contact any person,
firm or corporation who was at any time during Scholl's or
Ludwig's employment with the Company a customer of the Company.
9. All brochures, pamphlets, marketing material, requests
for proposals, responses to requests for proposals, applications
for inclusion in approved vendor lists, and similar documents
describing any of the Defendants, the work performed by
Defendants, and any other information about the Defendants.
Respectfully submitted.,
Jo athan H. Rudd, Esquire
D ane M. Tokarsky, Esquire
Nees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
~'~~G~ (717) 232-8000
Date:
3
CERTIFICATE OF SERVICE
I, Jonathan H. Rudd, Esquire, hereby certify that on this,s/~
day of February, 2002, a true and correct copy of the foregoing
document was served by first-class, United States mail, postage
prepaid, upon the following:
David A. Fitzsimons, Esquire
Mette, Evans & T~loodside
3401 N. Front Street
P.O. Box 5950
Harrisburg, pA 17110-0950
Jon han H. Rudd ~-
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC
Plaintiff
v.
No. 01 - 4176 Civil Term
LEROY R. SCHOLL, JR.
ROBERT CIANFICHI, and CIVIL ACTION - LAW
CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, INC.,:
Defendant
PLAINTIFF'S
DIRECTED TO DEFENDANTS
In accordance with the Pennsylvania Rules of Civil
Procedure, please answer the following interrogatories within
thirty (30) days.
For purposes of these Interrogatories, the term "Company"
refers to Scholl, Sowers and Associates, Inc., which was
incorporated in 1985, and whose name was changed to Scholl,
Sowers, Garner, Saylor Architectural Associates, Inc. in 1997,
and whose name was further changed to Sowers, Garner, Saylor
Architects Engineers, Inc. in 1999.
For purposes of these Interrogatories, the term "Customer"
refers to any person, firm or corporation for whom the Company
did any work, regardless of the amount or complexity of the work
performed.
When you are asked to "identify" an individual or entity,
you should set forth the name, address, and telephone number of
such individual or entity.
II
These Interrogatories are directed to all Defendants, and
the responses should include information related to any employee
of .the Defendants.
INTERROGATORIES
1. Please identify all persons, firms or corporations with
whom you have done any work since May 11, 1999, who was at any
time during Scholl's or Thomas Ludwig's ("Ludwig") employment
with the Company a Customer of the Company.
ANSWER:
2. Please describe all work you have performed for any
person, firm or corporation with whom you have done any work
since May 11, 1999, who was at any time during Scholl's or
Ludwig's employment with the Company a Customer of the Company.
ANSWER:
3. Please identify all persons, firms or corporations with
whom you have had any contact since May 11, 1999, who was at any
time during Scholl's or Ludwig's employment with the Company a
Customer of the Company.
ANSWER:
4. Please describe the nature of the contact you have had
with any person, firm or corporation with whom you have done any
work since May 11, 1999, who was at any time during Scholl's and
Ludwig's employment with the Company a Customer of the Company.
ANSWER:
5. Please identify all individuals who were at any time
employed by any of the Defendants who at any time during Scholl's
or Ludwig's employment with the Company was an employee of the
Company.
ANSWER:
~,
~:.
6. Please describe all contacts you have had with any
individual who at any time during Scholl's or Ludwig's employment
with the Company was an employee of the Company.
ANSWER:
7. Please state the amount of money received or to be
received (account receivable) from any person, firm or a
corporation with whom you have done work after May 11, 1999, who
was a Customer of the Company.
ANSWER:
8. With respect to your answer to the above interrogatory,
please identify the dates and amounts of all money received from
each separate source.
ANSWER:
m~a.ww.~.aau° - .~-
9. Please identify all projects upon which Lee Scholl was
the principal, as that phrase is used in paragraph 95 of your New
Matter.
ANSWER:
10. Please state all facts supporting your contention in
paragraphs 100 and 101 of your New Matter that the Agreement
attached as Exhibit A to the Complaint is overreaching, illegal,
invalid and unenforceable.
ANSWER:
11. Please state all facts supporting your contention in
paragraph 102 of your New Matter that the Agreement attached as
Exhibit A to the Complaint was entered under duress.
ANSWER:
i.
• ~'~r
12. Please state all facts supporting your contention in
paragraph 103 of your New Matter that Plaintiff's action is
barred by the Doctrine of Laches.
ANSWER:
13. Please state all facts supporting your contention in
paragraph 104 of your New Matter that Plaintiff's action is
barred by the Doctrines of Waiver and/or Estoppel.
ANSWER:
14. Please state all facts supporting your contentions in
paragraphs 105 and 106 of your New Matter that Plaintiff's action
is barred because of failure or want of consideration.
ANSWER:
r
15. Please state all facts supporting your contentions in
paragraph 107 of your New Matter that Plaintiff's action is
invalid because of impossibility of performance.
ANSWER:
16. Please describe what you contend took place and was
said at the meeting on May 11, 1999, between Scholl and his
former partners.
ANSWER:
L'
17. Please state whether you agree that the
Release/Cooperation Agreement and Release and Acknowledgment
attached as Exhibits A and B are enforceable. If you contend
that these agreements are not enforceable, please set forth all
facts supporting such contention.
ANSWER:
Respectfully submitted,
D ane M. Tokarsky, Esquire
Nees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Date: a-~`~ lG~
RELEASE/COOPERATTONRGREEMENT
Leroy R Scholl, intending to be Legally bound, does hereby reiease and forever dischazge
Scholl • Sowers • Garner • Saylor Architectural Associates, Inc., Partners 4 Associates, 3 S's
Enterprises, Dennis F. Sowers, Bruce E. Garner and Larry E. Saylor, collectively and
individually, in every capacity whatsoever, from any claims, damages, liability or injury arising
directly or indirectly from his professional association with them or the termination thereof, and he
agrees to indemnify and hold them harmless against same. Leroy R. Scholl further agrees to execute
and deliver all such further instruments and perform all such other acts as may be reasonably
required in order to fully extinguish all his interests in and/or business relationships with said entities
and/or individuals, and to refrain from any negative public or private comment, conversation,
publication or action with respect to said entities and/or individuals. In exchange for the foregoing,
and for so long as Leroy R. Scholl has performed in accordance with same, Scholl • Sowers • Garner
• Saylor Architectural Associates, Inc., Partners 4 Associates, 3 S's Enterprises, Dennis F. Sowers,
Bruce E. Gamer and Larry E. Saylor shall use their best efforts to have Leroy R_ Scholl and his
spouse removed as a personal guarantor of any debts of said entities and/or individuals, shall
indemnify him on a dollar for dollar basis to the extent he or his spouse are required to perform
under any such guarantees, and shall not contest any proper filing he might make for unemployment
compensation benefits.
Dated: /~A~ !/ , 1999
WITNESS: /'~
~~C~ L~/mss
Lero .Scholl
Dennis F. Sowe '.{
ii'%1 r~ i!c~
Bruce .Gamer
Larry aylor
~~~~~~~ ~
~~,~~
ATTEST:
~~~~~~~~
Partners 4 w~sociates
BY .G C . ,~~,~
General artner
3 S's Enterprises
Gene
Scholl • Sowers • Gamer • Saylor Architectural
Associates, Inc ~(
Title:
soss.~~.i
Y I-
5
LEE SCHOLL
120 Dorwood Drive
Carlisle, PA 17013-2131
June 21, 2000 n~~ ~ y
uux 2 2 ~
Bruce E. Gamer
SGS Architects Engineers, Inc.
One Tyler Court
Carlisle, PA 17013
Re: °3-S's Enterprises°
partnership Termination
Dear Bruce:
Enclosed is one copy the executed °Release And Acknowledgement". I have kept the
other one for my files.
Sincer ly,
Lee
RELEASE AND ACKNOWLEDGEMENT
Leroy R. Scholl, intending to be legally bound, does hereby acknowledge that his receipt of
the sum of $1,697.00 from 3 S's Enterprises, a Pennsylvania general partnership, shall constitute full
and final payment for any and all outstanding interest which he may have or be deemed to have in
said partnership, which interest shall be fully satisfied and terminated by such payment, and agrees
that his acceptance of said sum shall release and discharge said partnership and its principals from
any liability or obligation to him in any way related to such interest, and in every capacity
whatsoever, past, present and future.
Dated: _ J~ wLE 2 ~ , 2000
WI~T~NE,SS:
--F~~ -
~r
Leroy R .chop
9p95.iM 2 dac
CERTIFICATE OF SERVICE
I, Jonathan H. Rudd, Esquire, hereby certify that on this
day of February, 2002, a true and correct copy of the foregoing
document was served by first-class, United States mail, postage
prepaid, upon the following:
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
?d Iw'~/
Jon an H. Rudd
FEE-13-02 16.53 FROM=METT£ EVANS WDOO61DE ID=717 236 1616
1-i]ETTE. EYdN~ .~ W'UQ9D$IDE
a PROF69~ONe+. aoAxonnxmx
AT2'OR37SY'S 8T yAW
80WBt.4GMatrie Jp,pyEyq,pp~ry~q $401 NORTJI FRONT STBggT
Rnesm'MOaree IGt~Iimvx4S~uson FA-76Ua ssso
CnM[FS B.Zw.u.1.Y P.Dnn16LALTUnn HA1212SSQRCi, PA 1~o.pg .0
Pcnp~J.RF~sr.ex Arvptewti,Dpw,,tnc
A.GOrDRPmsiRC M[CFNCI.A Ran IFS NQ
CIinW AS10NE PnV4a J.1.MCxr £3A885005
IA~ffi.4A UtSli Gnarl. HE1M
Duara 49VLLrv.UV
DwvmAYl'nspf0+as TELEPHONIC 7A'6S
SlEVRn D.9lraFn
GorP.Bencvrf.~]'nno (3191 9.$~BWO I7I.'P SSG38]@.
QvusravwczGCOwu+x
TaOmapF. $htIDn _
hrcpJ/www.metta.com
VTA FACSIlVIILE
February 13, 2002
Jonathan H. Rudd, Esquire
McNEES, WAI.LACE & NURICI~
7.00 Pine Street
1'.O. Box 1,166
Harrisburg,l'A?7108-1166
Jom+F.Y.wi'n~aC
YtacrAxnTlmuan
TwmmA. Hov
ISATBIFYN DOYLS YnMnvc
InnvgMSxrbnc
7shlaIR0.AY.wunAttl
RANDwLL G.11UR4T"
sUSavD. A:mYVtson
PAGE 2/2
OK CAi1cuCL
J,~tlFSW. Bvnns
'N.rtr~wrm8.u
Ire: Soxoers, Gtcrner, SayloJ-Architects Eru,/ineers, Inc. v. Leroy IL Seleoll,
Jn, Ro6ert Cia~chi, axtd Cia~hi & Scholl Architectural
Associates, LLC
Cumberland Co. C.P. No. OI-4T 76
Dear Mr. Rudd:
I received your letter of February 6~' which I will assume was directed
primarily to your client's benefit rather than me. I am currently away from my
af1ice, but hope to be bael~ later in the week at which time I will contact you to
discuss the tasks you have assigned, and correct some misperceptions in your letter.
Sincerely yours,
IVIE'I°),:E, E'VA1~3S & WOODSII)E
David A. Fitzsimons
Dt1F':gIs
cc: I.,ee Scholl, AIA
zasssz
/ MAR-0B-02 14:46 FROM:METTE EVAN5 WOODSI DE ~ ID:717 236 IB16 PAGE 2/3
METTE. E~.ANS 8c WOOA$IDE
A i'ROFE%BTOxnx.ODxi+p~,p,~lppt
ATTORN8Y6 8T LAW
HOW1h.4 C'MSRS JPtR6YA. PRIOCp Sl02 NORTH FRONT STRE@T
AOISRTMOORB
IUIHRYNL
A.Q 808595U _
F
QL~i.MS&Z~YN.LY
P. DAN/ID.AL'AM'G
>IIR(#PA 17110.OB¢o ~
ANNTta9uPx
i
PciwxR~stca 11Mtl1YYA Hpy
LwYDRPertsFn
+~oufl.C~.HC®
~~ xa-~19ce®vHOYL6YArm.E.x oYCOUSSra.
(]1p1G0.S
I
O
n
E
PnmwxLVCar
~'5 JAIffi M. SYapns J,w6g w. EVANB
•f
~
s
~.
7M~4eL vVn
G~kYxB®1 7&vAicsrtAXAiaulltda
_-••
DnM0r L.311LC1YnN DAYm AFrYt¢gONS T1~8oNS S9% He'mut G.Hmisl~
stevia+D_S.ma
CvYP.6®vcvarc~o
<~1.7i S87L6ooo /7a~1 l8618xs $USARD. APD1'S3oN
Qwlsroet~GCOnnxs
1ttoM~SF_S3.IDM •1xNcnums.e
larpJ/www.mava.cem
VIA?~'ACSIMII,E
March 8, 2002
Jonathan H. Rudd, Esquire
Me1VEES, WALI.ACE & NURICK
100 Pine Street
P.O. Eox 1166
Harrisburg, PA 1710&1166
Re: Sowers, Garner, Saylor Architects,Engineers, Inc v. Leroy E. Schott,
Jr., Robert Cian,~ctts, and Gian,~clti & Schott Architectural
1~ISSOC'iQ.teS, LLC
Cunclierldnd Co. C.P. No. 02-4176
I)earJonatlian:
I am following up on our telephone conversation and more recent exchange
of voice mails to confirm that I am indeed working on amendments to the pleadings
akong the lines that we discussed. While I do not necessarily agree with the anakysis
presented in your most recent correspondence, it is certainly tp both our clients
benefits to move the dispute towards resokution without unnecessary motions
practice.
I am also worIQilg on responses to your initial discovery which will provide
answers to those questions which can be answered at this stage of the proceedings
and are not objectionable.
I also wish to confirm my statement to you, that I suggest, respectfully, that
your client reconsider whether it really wishes to pursue this action under the
circumstances. This is not a demonstration of weakness or lack of resolve by my
client. Rather, it is based on my experience that mature, experienced businessmen
always assess these matters from a business rather than a personal perspective.
The further this goes, the more difficult it will be to resolve satisfactorily.
__ .
r MAR-0B-B2 34.46 FROM: METTE EVANS WOOD6I DE ID:717 236 1816 PAGE
March S, 2002
Page 2
I appreciate your expected professional Courtesies and, as always, You can
expect the same from me.
Sincerely yours,
lYIIr~,TE EV & WOODSIDE
Dave A. k'itzsimons
DAl':gls
cc (via facsimile):
kZobert B. Cianf~chi, P.E.
Lee Scholl, AIA
2s5o1&
3/3
CERTIFICATE OF SERVICE
I, Jonathan H. Rudd, Esquire, hereby certify that on this ~ 3
day of April, 2002, a true and correct copy of the foregoing
document was served by first-class, United States mail, postage
prepaid, upon the following:
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 N. Front Street
P.O. Sox 5950
Harrisburg, PA 17110-0950
c-, ~,
~_ {5J
`
: ~'::
r _
-.J
_
G,q ~. _ 1> ___ _
e
..
~.-j '
, ~'
~1
'\.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff
v.
No.: 01-4176 CIVIL TERM
LEROY R. SCHOLL, JR.,
ROBERT CIANFICHI,
and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
v.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR and SOWERS,
GARNER, SAYLOR ARCHITECTS
EIGINEERS, INC.,
Additional Defendants CIVIL ACTION -LAW
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(s). 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
(717) 249-3166
(800) 990-9108
~;
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff
v.
No.: 01-4176 CIVIL TERM
LEROY R. SCHOLL, JR.,
ROBERT CIANFICHI,
and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
v.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR and SOWERS,
GARNER, SAYLOR ARCHITECTS
EIGINEERS, INC.,
Additional Defendants CIVIL ACTION -LAW
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de
estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al
partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la torte en forma escrita sus defensas o
sus objeciones a las demandas en contra de su persona. Sea avisado que si usted nose
defiende, la torte tomara medidas y puede entrar una Orden contra usted sin previo aviso 0
notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted
puede perder dinero o sus propiedades o otros derechos importantes Para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO
TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE
PUEDE CONSEGUIR.ASiSTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(800)990-9108
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff
v.
No.: 01-4176 CIVIL TERM
LEROY R. SCHOLL, JR.,
ROBERT CIANFICHI,
and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
v.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR and SOWERS,
GARNER, SAYLOR ARCHITECTS
EIGINEERS, INC.,
Additional Defendants CIVIL ACTION -LAW
COMPLAINT TO JOIN AS ADDITIONAL DEFENDANTS
DENNIS SOWERS, BRUCE GARNER. AND LARRY SAYLOR
AND NOW COME Leroy R. Scholl, Jr., Robert Cianfichi, and Cianfichi &
Scholl Architectural Associates, LLC, original Defendants in the above action and
pursuant to Pa.R.C.P. 2252 (b), by and through their attorneys, Mette, Evans &
Woodside, file this Complaint against Dennis Sowers, Bruce Garner, and Larry
Saylor as Additional Defendants, alleging the following:
Additional Defendant, Dennis Sowers, is a citizen and resident of the
State of Pennsylvania, with a principle place of business at One Tyler Court,
Carlisle, Pennsylvania, 17013.
2. Additional Defendant, Bruce Garner, is a citizen and resident of the
State of Pennsylvania, with a principle place of business at One Tyler Court,
Carlisle, Pennsylvania, 17013.
3. Additional Defendant, Larry Saylor, is a citizen and resident of the
State of Pennsylvania, with a principle place of business at One Tyler Court,
Carlisle, Pennsylvania, 17013.
4. The Plaintiff has commenced the instant action alleging damages
arising from a breach of contract and from interference with contractual relations.
Specifically, Plaintiff alleges a violation by Scholl, Cianfichi, and C&S of the
"Confidentiality Agreement and Restriction Against Competition" executed by the
stockholders of SSGS. Plaintiff also alleges that Scholl breached his fiduciary duty
to act in the best interest of SSGS. The Additional Defendants, as officers and
active shareholders of Plaintiff, each have access to the Complaint, and upon
information and belief have reviewed and verified the allegations of which
Complaint are denied by Defendants.
5. Defendant Leroy R. Scholl, Jr., founded the architectural firm that was
later joined by Additional Defendants, Dennis Sowers, Bruce Garner, and Larry
Saylor, and that became SSGS and constructed a building at 1 Tyler Court,
Carlisle, Pennsylvania, 17013, which served as the principle place of business of
SSGS and is the current principal place of business of Sowers, Garner, Saylor
Architects Engineers, Inc.
6. On or about May 11,1999, Scholl was told by additional Defendants
Sowers, Garner, and Saylor that they wished for his removal from the company and
was dismissed at that same meeting from the firm.
At the time of his removal, Scholl was apart-owner in the building
constructed at 1 Tyler Court, Carlisle, Pennsylvania, 17093, which was the principal
place of business of SSGS and is the current principal place of business of Sowers,
Garner, Saylor Architects Engineers, Inc.
8. At no time has Scholl been provided with the value of his equity share
in the building and demand therefore is hereby made from the additional
Defendants, as partners in SSGS, including a demand for an accounting of the
value of the building at the time of Scholl's discharge and removal from the
practice.
9. At the time of his removal on May 11, 1999 from the SSGS practice,
and subsequently, Scholl was provided with no accounting of the value of the
corporation, nor provided with his equity share in the company and demand
therefore is hereby made.
10. At no time prior to announcing to Scholl that they were seeking his
removal from the firm, did additional Defendants Sowers, Garner and/or Saylor
warn Scholl that they were considering his removal from the company he had
founded, nor did they provide credible documentation of the basis for such a
decision.
11. To the contrary, the additional Defendants evidenced the fact that
Scholl was a significant asset to the company and that his reputation within the
community as an architect and a businessman was of considerable benefit to SSGS
by continuing to use Scholl's name in the company name for in excess of four
months after removing him.
12. If the Plaintiff sustained lost profits and increased expenses resulting
from an alleged breach of fiduciary duty by Scholl, which is specifically denied,
then such damages were equally caused by each individual additional Defendant,
Sowers, Garner, and Saylor, by failing in their own fiduciary duties to manage the
business with the care, skill and diligence that a person of ordinary prudence would
use under similar circumstances and each additional Defendant is jointly or
severally liable for such damages.
13. If the Plaintiff sustained lost profits and increased expenses resulting
from an alleged breach of fiduciary duty by Scholl, which is specifically denied,
then additional Defendant Bruce Garner, who did not himself generate income for
SSGS but was rather the non-architect managing partner, is equally liable for such
damages by failing to document to Scholl any credible demonstration of legitimate
concerns about Scholl's performance as principal for significant projects and in
failing to identify and address apparent problems with company performance and
profitability. Furthermore, the "business model" followed by SSGS was exclusively
the design and concept of Garner.
14. If the Plaintiff sustained lost profits and increased expenses resulting
from an alleged breach of fiduciary duty by Scholl, which is specifically denied,
then all additional Defendants, as equal partners of the firm, are also liable for such
4
damages by allowing and causing the working conditions at the practice to become
so negative and tenable that Scholl and other valuable employees were either
terminated or left the company within a short period of time.
15. If, as is inferred by the Complaint of SSGS, that Plaintiff has suffered
reversals in its business, revenues and profit margins during and/or after Scholl's
tenure with the firm, such reversals are in no way related to or caused by any
actions of omission or commission by Defendants, their agents or employees, but
rather are the result of the business cycle, and/or management and business
decisions made without consultation with Defendant Scholl.
WHEREFORE, the Defendants Leroy R. Scholl, Jr., Robert Cianfichi, and
Cianfichi & Scholl Architectural Associates, LLC, demand judgment in their favor
and against all other parties, or in the alternative, against the Additional
Defendants Dennis Sowers, Bruce Garner, and Larry Saylor.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: ~~~~ ~
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
Date: May 20, 2002
290322
VERIFICATION
I, Leroy R. Scholl, in the foregoing action execute this Verification; have read
the foregoing document and to the extent that it contains facts supplied by me, they
are true and correct to the best of my personal knowledge, information and belief.
This Verification is made pursuant to 18 Pa. C.S. §4904 relating to unsworn
falsification to authorities.
eroy .Scholl
Dated:
:269534 I
VERIFICATION
I, Robert Cianlichi, hereby affirm that I am President of Cianfichi & Scholl
Architectural Associates, Inc., that I make this Verification on behalf of Cianfichi &
Scholl Architectural Associates, Inc., and in my individual capacity, that I am
familiar with the facts and allegations set forth in the foregoing document. I have
read the foregoing document and hereby affirm that it is true and correct to the
best of my personal knowledge, information and belief. This Verification is made
pursuant to 18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
-~ ~~
Robert Ci nfichi
Dated:
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by hand-delivering a copy, as follows:
Jonathan H. Rudd, Esquire
McNEES, WALLACE & NURICK
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
METTE, EVANS & WOODSIDE
By: ~ ~"„-y
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendants
Date: May 21, 2002
:290738 1
(-; G~ c-~
c- ~~ -~~
~.
r _~; _
_
- - r~
r
L ~
y •
~~l 1~
~ ~J -~
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiff CIVIL ACTION -LAW
v.
NO.Ol-4176 CIVIL TERM
LEROY R. SCROLL, JR., ROBERT
CIANFICHI, and CIANFICHI & SCROLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
RESPONSE TO RULE TO SHOW CAUSE
AND NOW, this 20"' day of May, 2002, Defendants respond to the Rule to
Show Cause served on May 1, 2002 by their counsel as follows:
Only the strictly factual allegations of the Rule to Show Cause are
admitted, namely that discovery was served upon the Defendants and counsel for
the parties engaged in discussions relative to the relevancy and discoverability of
certain subject matter including the hope on the part of defense counsel and
Defendants that when the initial emotions behind the filing of suit had cooled, that
the parties could resolve their differences through less strident means was explored
and found unworkable. All other inferences and conclusions are denied.
2. Defendants deny any inference from the Petition for Rule to Show
Cause that they or their counsel were remiss, disrespectful or acted inappropriately
in hoping that through discussions with opposing counsel, matters could calm down
and be resolved without resort to motions practice, and active litigation.
Finally, the Rule to Show Cause has been rendered moot by the
concurrent filing by Defendants of responses and objections and responsive
documents to the interrogatories and requests for production and the request for
fees was properly denied in the court's Order. J. Wesley Oler, presiding.
Respectfully submitted,
MET EV WOODSIDE
,~
By:
David A. Fitzsimons, Esquire
I.D. No. 41722
Date:
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
z9s~ai 2
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by hand-delivering a copy, as follows:
Jonathan H. Rudd, Esquire
McNEES, WALLACE & NURICK
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
METTE, EVANS & WOODSIDE
By:
David A. Fitzsimons, Esquire
I.D. No. 41722
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
Date: May 21, 2002
:290738 I
~ ~ o
C iv
-- -fir
nit . _ _:
-
-c =, ;'
y; ~ ~'i
~" ~ `' c-a
~' c ..
:G~
.{ t~ -<
~~~
t7
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.
Plaintiff
v.
LEROY R. SCHOLL, JR.
No. O1 - 4176 Civil Term
ROBERT CIANFICHI, and CIVIL ACTION - LAW
CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, INC.,:
Defendant
NOTICE TO PLEAD
TO: DEFENDANT LEROY R. SCHOLL, JR. and
DAVID A. FITZSIMONS, ESQUIRE, His Attorney:
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER TO THE COUNTERCLAIM WITHIN TWENTY (20) DAYS
FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
McNEES WALLACE & NUnRIC,K~ LLC
L ~~N
Jonathan H. Rudd, Esquire
Diane M. Tokarsky, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Plaintiff Sowers, Garner,
Saylor Architects Engineers, Inc.
Dated: September ~, 2002
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.
Plaintiff
v.
LEROY R. SCHOLL, JR.
ROBERT CIANFICHI, and
CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, INC.,:
Defendant
No. O1 - 4176 Civil Term
CIVIL ACTION - LAW
PLAINTIFF SOWERS, GARNER, SAYLOR ARCHITECTS ENGINEERS, INC.'S
REPLY TO DEFENDANTS' NEW MATTER AND COUNTERCLAIM, AND
DENNIS SOWERS'S, LARRY SAYLOR'S AND BRUCE GARNER'S
REPLY TO CLAIMS ALLEGED AGAINST THEM
AND NOW comes, Plaintiff, by and through its attorneys,
McNees Wallace & Nurick LLC, and makes the following reply to
Defendants' New Matter and Counterclaim, and also comes Dennis
Sowers, Larry Saylor and Bruce Garner, as individuals, and make
the following reply to the claims asserted against them.
PLAINTIFF'S REPLY TO NEW MATTER
89. Plaintiff incorporates herein by reference paragraphs
1-88 of the Complaint as if fully set forth herein.
90. Admitted, except that the correct name is Scholl Sowers
Garner Saylor Architectural Associates, Inc.
91. Admitted.
92. Denied. Plaintiff and its principals had many meetings
with Scholl about his deficient performance prior to May 11,
1999. As early as 1995, Scholl's partners were concerned with
his work performance. Scholl and his partners agreed to hire a
consultant in primary part to assist Scholl in improving his
performance. Despite the consultant's recommendations, Scholl's
performance did not improve. Scholl was expressly informed in
September, 1998, that his performance had to improve, and that
if his performance did not improve, he would be requested to
resign from the Company. Scholl acknowledged that his
performance was unacceptable, and volunteered to take a salary
reduction in order to correct the inequity of him receiving the
same amount as his partners without performing at the same level
or contributing equally.
93. It is admitted that Scholl's name and reputation was a
benefit to Plaintiff. This is the reason the other principals of
Plaintiff put up with Scholl's inadequate performance for so
long. However, eventually it got to the point where the benefit
derived from Scholl's name and reputation was greatly outweighed
by his inadequacies, as described in the Complaint.
94. Denied. As Plaintiff previously explained to Scholl,
the continued use of his name had nothing to do with the
purported benefit from using his name. Rather, Plaintiff was
unable to switch names immediately since it needed approval from
the Pennsylvania State Licensure Board prior to the use of the
present name of SGS. Plaintiff immediately applied for a name
change after Scholl's resignation, and began use of the new name
promptly upon its approval in August, 1999.
95. Admitted in part; denied in part. At the time of his
resignation, Scholl was not working on very many significant
2
projects for SGS. It is admitted that at times throughout his
association with SSGS Scholl handled significant projects.
96. Denied. It was the intent of management of SGS to
enforce the Confidentiality Agreement and Restriction Against
Competition ("Agreement"). The Agreement did not prevent Scholl
from practicing architecture, and Scholl could have continued to
practice architecture without violation of the restrictions
against competition contained in the Agreement.
97. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that Scholl did not resign from SGS. It is admitted
that Scholl's fellow shareholders requested him to resign as a
result of his inadequate performance as described in the
Complaint.
98. Denied. It is denied that any of Plaintiff's employees
who were terminated or left the Company within a short period of
time of Scholl did so because of negative and uncomfortable
working conditions.
99. Denied as stated. It was the intent and interpretation
of Plaintiff to enforce the Agreement as written and agreed to by
Scholl. It is admitted that Scholl agreed not to solicit, entice
or induce any person who at any time during his employment with
the Company had worked for the Company, to become employed by any
other person, firm or corporation.
100. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that Plaintiff's request that the Agreement be enforced
is overreaching, illegal and unenforceable. Scholl was the
3
President of SSGS at the time the Agreement was drafted and
executed by the principals, and fully understood and agreed to
the restrictions against competition contained in the Agreement.
101. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that the Agreement is invalid and unenforceable under
Pennsylvania law.
102. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that Scholl was under duress when he executed the
Agreement.
103. Denied. This paragraph states a legal conclusion which
requires no response.
104. Denied. This paragraph states a legal conclusion which
requires no response.
105. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that there is no consideration for the Agreement. All
of the principals of SSGS signed a similar agreement with
restriction9 against competition, which serves as adequate
consideration since Scholl received the benefit of his three
fellow partners' agreement not to compete with SSGS if they
should leave the Company.
106. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied t11at there is no consideration for the Agreement. All
of the principals of SSGS signed a similar agreement with
restrictions against competition, which serves as adequate
4
consideration since Scholl received the benefit of his three
fellow partners' agreement not to compete with SSGS if they
should leave the Company.
107. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that it was impossible for Scholl to abide by and
perform the terms of the Agreement. Scholl could have worked in
his profession without violating the terms of the Agreement.
108. Denied. This paragraph states a legal conclusion which
requires no response.
WHEREFORE, Plaintiff requests that judgment be entered in
its favor and against Defendants in accordance with the relief
requested in the Complaint.
PLAINTIFF AND DENNIS SOWERS', LARRY SAYLOR'S
AND BRUCE GARNER'S REPLY TO COUNTERCLAIM
COUNT I
Leroy R. Scholl, Jr, v. Sowers, Garner, Saylor
Architects Engineers, Inc. and
Dennis Sowers, Larry Saylor and Bruce Garner, Individuals
109. The averments in the Complaint and above Reply to New
Matter are incorporated herein by reference as if set forth at
length. At the time the counterclaim was filed, Dennis Sowers,
Larry Saylor and Bruce Garner were not parties to this action.
The counterclaim against these three individuals is procedurally
inappropriate and should be stricken. Defendant Scholl agreed to
withdraw the counterclaim against the three individuals and
assert any alleged claim in an Additional Defendant Complaint.
Although Defendant Scholl belatedly filed an Additional Defendant
5
Complaint against the three individuals, he never formally
withdrew his counterclaim against these individuals.
Accordingly, the three individuals named in this counterclaim
join in the response without waiving the right to later seek
dismissal of the counterclaim against them on procedural and/or
substantive grounds.
110. Admitted.
111. Admitted.
112. Denied. This paragraph states a legal conclusion
which requires no response. To the extent a response is
required, it is denied that Scholl is entitled to any additional
payment for the value of his equity share in the building. On
May 11, 1999, Scholl executed a Release/Cooperation Agreement,
which is attached hereto as Exhibit A. In the
Release/Cooperation Agreement, Scholl specifically released and
forever discharged SSGS, Partners 4 Associates, 3 S's
Enterprises, Dennis F. Sowers, Bruce E. Garner, and Larry E.
Saylor from any claims, damages, liabilities or injuries arising
directly or indirectly from his professional association with
them or the termination thereof, and he agreed to indemnify and
hold them harmless against the same. Partners 4 Associates owned
1 Tyler Court on May 11, 1999. At the time Scholl executed the
Release/Cooperation Agreement, he was well aware that there was
no value to his equity share in the building because he had full
and complete access to the relevant financial information and was
routinely provided with documents setting forth the financial
condition of the entities of which he was an owner. Scholl is
not entitled to an accounting since he has released all claims
6
against the Plaintiff and his former partners regarding his
equity share in the building.
Plaintiff and Dennis Sowers, Larry Saylor and
Bruce Garner demand that Defendant Leroy R. Scholl, Jr.'s claims
be dismissed and judgment be entered in favor of Plaintiff,
Dennis Sowers, Larry Saylor and Bruce Garner on Count I of the
Counterclaim.
COUNT II
Leroy R. Scholl v. SSGS and Dennis Sowers, Larry Saylor
And Bruce Garner, Individuals
113. The averments in the Complaint and above Reply to New
Matter and Reply to Counterclaim are incorporated herein by
reference as if set forth at length. At the time the
counterclaim was filed, Dennis Sowers, Larry Saylor and Bruce
Garner were not parties to this action. The counterclaim against
these three individuals is procedurally inappropriate and should
be stricken. Defendant Scholl agreed to withdraw the
counterclaim against the three individuals and assert any alleged
claim in an Additional Defendant Complaint. Although Defendant
Scholl belatedly filed an Additional Defendant Complaint against
the three individuals, he never formally withdrew his
counterclaim against these individuals. Accordingly, the three
individuals named in this counterclaim join in the response
without waiving the right to later seek dismissal of the
counterclaim against them on procedural and/or substantive
grounds.
7
114. Denied. This paragraph states a legal conclusion
which requires no response. To the extent a response is
required, it is denied that Scholl is entitled to any payment for
the value of the corporation. On May 11, 1999, Scholl executed a
Release/Cooperation Agreement, which is attached hereto as
Exhibit A. In the Release/Cooperation Agreement, Scholl
specifically released and forever discharged SSGS, Partners 4
Associates, 3 S's Enterprises, Dennis R. Sowers, Bruce E. Garner,
and Larry E. Saylor from any claims, damages, liabilities or
injuries arising directly or indirectly from his professional
association with them or the termination thereof, and he agreed
to indemnify and hold them harmless against the same. At the
time Scholl executed the Release/Cooperation Agreement, he was
well aware that there was no value to his equity share in the
company. Scholl is not entitled to an accounting since he has
released all claims against the Plaintiff and his former partners
regarding his equity share in the company.
Plaintiff Dennis Sowers, Larry Saylor and Bruce
Garner demand that Defendant Leroy R. Scholl, Jr.'s claims be
dismissed and judgment be entered in favor of Plaintiff, Dennis
Sowers, Larry Saylor and Bruce Garner on Count II of the
Counterclaim.
COUNT III
Leroy R. Scholl v. SSGS and Dennis Sowers, Larry Saylor
115. The averments in the Complaint and above Reply to New
Matter and Reply to Counterclaim are incorporated herein by
reference as if set forth at length. At the time the
8
counterclaim was filed, Dennis Sowers and Larry Saylor were not
parties to this action. The counterclaim against these two
individuals is procedurally inappropriate and should be stricken.
Defendant Scholl agreed to withdraw the counterclaim against the
two individuals and assert any alleged claim in an Additional
Defendant Complaint. Although Defendant Scholl belatedly filed
an Additional Defendant Complaint against the two individuals, he
never formally withdrew his counterclaim against these
individuals. Accordingly, the two individuals named in this
counterclaim join in the response without waiving the right to
later seek dismissal of the counterclaim against them on
procedural and/or substantive grounds.
116. Admitted.
117. Denied. By Release and Acknowledgment dated June 21,
2000, a copy of which is attached as Exhibit B, Scholl
acknowledged receipt of $1,697 from 3 S's Enterprises, and agreed
that his acceptance of said sum released and discharged 3 S's
Enterprises and its principal from any liability or obligation to
him. Scholl's claim that he has never been provided with an
accounting or distribution of assets from 3 S's Enterprises is
frivolous and without merit.
Plaintiff and Dennis Sowers, and Larry Saylor
demand that Defendant Leroy R. Scholl, Jr.'s claims be dismissed
and judgment be entered in favor of Plaintiff, Dennis Sowers and
Larry Saylor on Count III of the Counterclaim.
9
NEW MATTER TO COUNTERCLAIM
118. Plaintiff, Dennis Sowers, Larry Saylor, and Bruce
Garner incorporate herein by reference the averments set forth in
the Complaint and the above Reply to New Matter and Reply to
Counterclaim.
119. Scholl is in violation of the Pennsylvania Rules of
Civil Procedure by asserting counterclaims against Dennis Sowers,
Larry Saylor and Bruce Garner, individually, since these
individuals are not plaintiffs and were not joined to this action
at the time the counterclaim was filed. Nothing contained in
this document is intended to be a waiver by Dennis Sowers, Larry
Saylor and Bruce Garner to seek the dismissal of all claims
against them on the basis of their improper joinder to the
counterclaims.
120. All of the claims asserted against Plaintiff, Dennis
Sowers, Larry Saylor and Bruce Garner have been released and are
barred by the Release/Cooperation Agreement and Release and
Acknowledgment attached hereto as Exhibits A and B.
121. Scholl's claims are barred by an accord and
satisfaction.
122. Scholl's claims are barred by the doctrines of waiver
and/or estoppel.
123. Scholl's claims are barred by the applicable statute
of limitations.
124. Scholl has failed to state a claim upon which relief
may be granted.
10
125. Scholl is required to indemnify Plaintiff, Dennis
Sowers, Larry Saylor, and Bruce Garner from all claims asserted
by Scholl in the Counterclaim. Scholl's liability to indemnify
Plaintiff, Dennis Sowers, Larry Saylor, and Bruce Garner
completely sets off any liability the Plaintiff, Denny Sowers,
Larry Saylor and Bruce Garner are alleged to have to Scholl.
126. Plaintiff, Dennis Sowers, Larry Saylor, and Bruce
Garner have demanded that Scholl indemnify and hold them harmless
from the claims set forth in the counterclaim. A copy of the
demand letter is attached hereto as Exhibit C. Scholl has
refused to indemnify and hold harmless Plaintiff, Dennis Sowers,
Larry Saylor, and Bruce Garner and is in breach of his obligation
to do. Scholl is barred from recovering any amount from
Plaintiff, Dennis Sowers, Larry Saylor, and Bruce Garner as a
result of his own material breach of the agreement to indemnify
and hold harmless Plaintiff, Dennis Sowers, Larry Saylor, and
Bruce Garner.
WHEREFORE, Plaintiff, Dennis Sowers, Larry Saylor and Bruce
Garner demand that Defendant Leroy R. Scholl, Jr.'s claims be
dismissed and judgment be entered in favor of Plaintiff, Dennis
Sowers, Larry Saylor and Bruce Garner on Counts, I, II and III of
the Counterclaim.
Respeptfully submitted,
Jd athan H. Rudd, Esquire
Di ne M. Tokarsky, Esquire
Nees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Date: September 2002
11
VERIFICATION
I, Bruce E. Garner, Managing Principal of Plaintiff, verify
that the statements made in the foregoing document are true and
correct to the best of my knowledge, information and belief. I
understand that false statements herein are made subject to the
penalties of 18 Pa.C.S. §4904, relating to unsworn falsification
to authorities.
Bruce E. Garn~ '
Dated: G 3v, ZooZ
RELEASElCOOPERATION AGREEMENT
Leroy R Scholl, intending to be legally bound, does hereby release and forever discharge
Scholl • Sowers • Garner • Saylor Arcfiitectural Associates, Inc., Partners 4 Associates, 3 S's
Enterprises, Dennis F. Sowers, Bruce E. Garner and Larry E. Saylor, collectively and
individually, in every capacity whatsoever, from any claims, damages, liability or injury arising
directly or indirectly from his professional association with them or the termination thereof, and he
agrees to indemnify and hold them harmless against same. Leroy R. Scholl further agrees to execute
and deliver all such further instruments and perform all such other acts as may be reasonably
required in order to fully extinguish all his interests in and/or business relationships with said entities
and/or individuals, and to refrain from any negative public or private comment, conversation,
publication or action ~~~th respect to said entities and/or individuals, In exchange for the foregoing,
and for so long as Leroy R_ Scholl has performed in accordance with same, Scholl • Sowers • Cramer
• Saylor Architectural Associates, Inc., Partners 4 Associates, 3 S's Enterprises, Dennis F. Sowers,
Bruce E. Gamer and Larry E. Saylor shall use their best efforts to have Leroy R. Scholl and his
spouse removed as a personal guazantor of any debts of said entities and/or individuals, shall
indemnify him on a dollar for dollar basis to the extent he or his spouse are required to perform
under any such guarantees, and shall not contest any proper filing he might make for unemployment
compensation benefits.
Dated: /~Ax // , 1999
WITNES~S: /~ ~_
Lero .Scholl
~~__.
<~~-
~,
Denn~i~s~..F~S~owe s ~{
Bruce .Gamer
Larry aylor
~~<~fr
Partners 4 Associates
General ~artner
%~~C-;
ATTEST:
3 S's Enterprises
General Partner
Scholl • Sowers • Gamer • Saylor Architectural
Associates, Inc
BY ~ ~.Gr~
Title:
9095.1aavign.l
LEE SCHOLL
120 Dorwood Drive
Carlisle, PA 17013-2131
June 21, 2000
Bruce E. Gamer
SGS Architects Engineers, Inc.
One Tyler Court
Carlisle, PA 17013
Re: "3-S's Enterprises°
Partnership Termination
Dear Bruce:
JUN 2 2 2~0
Enclosed is one copy the executed °Release And Acknowledgement°. I have kept the
other one for my files.
Sincer ly,
Lee
RELEASE AND ACKNOWLEDGEMENT
Leroy R. Scholl, intending to be legally bound, does hereby acknowledge that his receipt of
the sum of $1,697.00 from 3 S's Enterprises, a Pennsylvania general partnership, shall constitute full
and final payment for any and all outstanding interest which he may have or be deemed to have in
said partnership, which interest shall be fully satisfied and terminated by such payment, and agrees
that his acceptance of said sum shall release and discharge said partnership and its principals from
any liability or obligation to him in any way related to such interest, and in every capacity
whatsoever, past, present and future.
Dated: .~~ i.lE 2l , 2000
WITNESS:
_ ~
~- f~ ~/
Leroy R chop
9095.Ire1.3.doc
One Tyler Court
Carlisle, PA 17013
717/249-4569
Fax:717J249-0284
EmaB: into®sgsarcheng.com
Dear Mr. Scholl:
On May 11, 1999, you executed aRelease/Cooperation Agreement {"Agreement") with
among others, Scholl, Sowers, Gamer, Saylor Architectural Associates, Inc-, Dennis F. Sowers,
Bruce E. Gamer, and Larry E. Saylor. In that Agreement, you agreed to indemnify and hold
harmless Scholl, Sowers, Gamer, Saylor Architectural Associates, Inc., Dennis F. Sowers,
Bruce E. Gamer, and Larry E. Saylor ftom any claims arising out of your professional
association with among others, Scholl, Sowers, Gamer, Saylor Architectural Associates, Inc.,
Dennis F. Sowers, Bruce E. Gamer and Larry E. Saylor. We have race»tly received a
counterclaim filed in the Court of Common Pleas of Cumberland County a# No. 01-4176
asserting claims arising from the professional association of Leroy R. Scholl, Jr. with the above
referenced entities and individuals. We hereby demand that you indemnity and hold harmless
Sowers, Gamer, Saylor Architects Engineers, Inc., formerly known as Scholl Sowers, Gamer
Saylor Architectural Associates, Inc., Dennis F. Sowers, Bruce E. Gamer, and Lany E. Saylor
from any and all liability arising out of the counterclaim- We have retained an attorney to defend
us against the counterclaim and demand that you pay all legal fees and costs associated with
defending against the counterclaim. Please confirm in writing that you will honor your
agreement indemnify and hold harmless Sowers, Gamer, Saylor Architects Engineers, Inc.,
Dennis F. Sowers, Larry E. Saylor and Bruce. E. Gamer from the claims asserted in the
counterclaim filed by Leroy R. Scholl, Jr.
Sincerely,
SOWERS, GARNER, SAYLOR
ARCHITEfCTS EtNGtNEERS, INC.
Bruce E. Gamer, Managing Principal
F.
Garner, Individually
c: Jonathon H. Rudd, Esq.
Leroy R. Scholl, Jr.
120 Dorwood Drive
Carlisle, PA 17013-2121
r .
CERTIFICATE OF SERVICE
I, Jonathan H. Rudd, Esquire, hereby certify that on this ~~
day of September, 2002, a true and correct copy of the foregoing
document was served by first-class, United States mail, postage
prepaid, upon the following:
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
~^"^"
H.
f
~~
.
~
,u
T
~[t ~~i ~''~ _~
~' j (I
s : O
p
i _ ~`,~ - -'l
~)
T
~1
~ _ _
-
: ~I I
z
J .
_
~ 'fl _'
CnJ
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC
Plaintiff
v.
No. O1 - 4176 Civil Term
LEROY R. SCHOLL, JR.
ROBERT CIANFICHI, and CIVIL ACTION - LAW
CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, INC.,:
Defendant
v.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR and SOWERS
GARNER, SAYLOR ARCHITECTS
ENGINEERS, INC.,
Additional Defendants
NOTICE TO PLEAD
TO: DEFENDANT/THIRD PARTY PLAINTIFF LEROY R. SCHOLL, JR. and
DAVID A. FITZSIMONS, ESQUIRE, His Attorney:
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
Dated: September ~ 2002
McNEES WALLACE & NURICK LLC
By
Jonathan H. Rudd, Esquire
Diane M. Tokarsky, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for the Additional
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.
Plaintiff
v. No. O1 - 4176 Civil Term
LEROY R. SCROLL, JR.
ROBERT CIANFICHI, and CIVIL ACTION - LAW
CIANFICHI & SCROLL
ARCHITECTURAL ASSOCIATES, INC.,:
Defendant
v.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR and SOWERS,
GARNER, SAYLOR ARCHITECTS
ENGINEERS, INC.,
Additional Defendants
ADDITIONAL DEFENDANTS DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR AND SOWERS, GARNER, SAYLOR ARCHITECTS
ENGINEERS, INC.'S ANSWER TO THE ADDITIONAL DEFENDANT COMPLAINT,
TOGETHER WITH NEW MATTER AND COUNTERCLAIM AGAINST
DEFENDANT/THIRD PARTY PLAINTIFF LEROY R. SCROLL, JR.
AND NOW COMES, Additional Defendant Dennis Sowers
("Sowers"), Bruce Garner ("Garner"), Larry Saylor ("Saylor") and
Sowers, Garner, Saylor Architects Engineers, Inc. ("SGS") by and
through their attorneys, McNees Wallace & Nurick LLC, and make
the following answer to the Additional Defendant Complaint,
together with new matter, and counterclaim against
Defendant/Third Party Plaintiff Leroy R. Scholl, Jr.
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted that the complaint sets forth claims for
breach of contract, interference with contractual relations, and
breach of fiduciary duty against the Defendants. It is admitted
that the Additional Defendants have reviewed and verified the
allegations of the complaint. It is denied that the Defendants
have denied all of the allegations of the complaint, and the
Defendants' answer to the complaint is a document which speaks
for itself.
5. Admitted.
6. Admitted in part; denied in part. It is admitted that
on or about May 11, 1999, Scholl was requested by the individual
Additional Defendants to voluntarily resign his positions with
the company. It is denied that Scholl was dismissed from the
company, since he agreed to voluntarily resign.
7. Admitted.
8. Denied. Scholl was the president of the company prior
to his voluntary resignation. Scholl was provided and familiar
with the financial statements and condition of the company.
Scholl agreed at the time of voluntary resignation that the
building had no equity since the debt on the building was greater
than the highest offer the partnership had received for the
purchase of the building. Further, it is denied that Scholl is
entitled to any additional payment for the value of his equity
share in the building. On May 11, 1999, Scholl executed a
Release/Cooperation Agreement, which is attached hereto as
2
Exhibit A. In the Release/Cooperation Agreement, Scholl
specifically released and forever discharged SSGS, Partners 4
Associates, 3 S's Enterprises, Dennis F. Sowers, Bruce E. Garner,
and Larry E. Saylor from any claims, damages, liabilities or
injuries arising directly or indirectly from his professional
association with them or the termination thereof, and he agreed
to indemnify and hold them harmless against the same. Partners 4
Associates owned 1 Tyler Court on May 11, 1999. Scholl is not
entitled to an accounting since he has released all claims
against the Additional Defendants regarding his equity share in
the building.
9. Denied. It is denied that Scholl is entitled to any
accounting and/or payment for his alleged equity share in the
company. On May 11, 1999, Scholl executed a Release/Cooperation
Agreement, which is attached hereto as Exhibit A. In the
Release/Cooperation Agreement, Scholl specifically released and
forever discharged SSGS, Partners 4 Associates, 3 S's
Enterprises, Dennis F. Sowers, Bruce E. Garner, and Larry E.
Saylor from any claims, damages, liabilities or injuries arising
directly or indirectly from his professional association with
them or the termination thereof, and he agreed to indemnify and
hold them harmless against the same. At the time Scholl executed
the Release/Cooperation Agreement, he was well aware that there
was no value to his equity share in the company. Scholl is not
entitled to an accounting since he has released all claims
against the Additional Defendants regarding his equity share in
the company.
3
10. Denied. The Additional Defendants had many meetings
with Scholl about his deficient performance prior to May 11,
1999. As early as 1995, the Additional Defendants were concerned
with Scholl's work performance. Scholl and the Additional
Defendants agreed to hire a consultant in primary part to assist
Scholl in improving his performance. Despite the consultant's
recommendations, Scholl's performance did not improve. Scholl
was expressly informed in September, 1998, that his performance
had to improve, and that if his performance did not improve, he
would be requested to resign from the company. Scholl
acknowledged that his performance was unacceptable, and
volunteered to take a salary reduction in order to correct the
inequity of him receiving the same amount as his partners without
performing at the same level or contributing equally. It is
denied that Scholl was not provided with credible documentation
of the basis for the decision to ask him to resign.
11. Admitted in part; denied in part. It is admitted that
Scholl's name and reputation was a benefit to Plaintiff. This is
the reason the other principals of Plaintiff put up with Scholl's
inadequate performance for so long. However, eventually it got
to the point where the benefit derived from Scholl's name and
reputation was greatly outweighed by his inadequacies, as
described in the Complaint. It is denied that the continued use
of Scholl's name had anything to do with the purported benefit
from using his name. Rather, Plaintiff was unable to switch
names immediately since it needed approval from the Pennsylvania
State Licensure Board prior to the use of the present name of
4
SGS. Plaintiff immediately applied for a name change after
Scholl's resignation, and began use of the new name promptly upon
its approval in August, 1999.
12. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that the Additional Defendants equally caused any lost
profits and increased expenses resulting from Scholl's breach of
fiduciary duty. The Additional Defendants acted prudently in
working with Scholl in an attempt to correct his breaches of
fiduciary duty and inadequacies. The Additional Defendants took
reasonable steps to mitigate the losses caused by Scholl's
breaches of duties and inadequacies. However, the Additional
Defendants were limited in what they could do when Scholl was
still associated with the Plaintiff since it was restricted in
its ability to publicly disclose Scholl's breaches of fiduciary
duty and inadequacies.
13. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that the "business model" followed by SSGS was
explicitly the design and concept of Garner. Rather, the
business model was developed jointly by all partners of SSGS. It
is further denied that Additional Defendant Garner failed to
document to Scholl any credible demonstration or legitimate
concerns about Scholl's performance or problems regarding company
performance and profitability as a result of Scholl's conduct.
Scholl was provided with periodic financial information which
demonstrated the financial issues associated with his practice.
5
14. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that any other valuable employee was terminated or left
the company within a short period of time of Scholl. It is
denied that the Additional Defendants caused the working
conditions at the practice to become so negative and tenable that
any employee was terminated or left the company.
15. Denied. This paragraph states a legal conclusion which
requires no response. To the extent a response is required, it
is denied that the lost profits and increased expenses incurred
as a result of Scholl's conduct was the result of business
cycles, or that management and business decisions made without
consultation with Scholl. As president of the company, Scholl
was consulted on all significant business decisions. The damages
suffered by Plaintiff were a direct result of Scholl's failure to
properly manage projects and other inadequacies described in the
Complaint. Any business decision not to pursue collection of
amounts incurred as a result of Scholl's work was prudent in
consideration of the inconsistency between the amount of time
Scholl spent on projects and the value he delivered.
Additional Defendants demand judgment in their
favor and against Defendant Scholl on all claims set forth in the
Additional Defendant Complaint.
NEW MATTER
16. All of Scholl's claims for an accounting of his
alleged equity interest in the building and company have been
6
released and are barred by the Release/Cooperation Agreement and
Release and Acknowledgment attached hereto as Exhibits A and B.
17. Scholl's claims for an accounting of his alleged
equity interest in the building and company are barred by an
accord and satisfaction.
18. Scholl's claims for an accounting of his alleged
equity interest in the building and company are barred by the
doctrines of waiver and/or estoppel.
19. Scholl's claims for an accounting of his alleged
equity interest in the building and company are barred by the
applicable statute of limitations.
20. Scholl is required to indemnify Additional Defendants
from the claim for an accounting of his alleged equity interest
in the building and company. Additional Defendants have demanded
that Scholl indemnify and hold them harmless from the claims set
forth in the counterclaim. A copy of the demand letter is
attached hereto as Exhibit C. Scholl has refused to indemnify
and hold harmless Additional Defendants and is in breach of his
obligation to do. Scholl is barred from recovering any amount
from Additional Defendants on his claim for an accounting of his
alleged equity interest in the building and company as a result
of his own material breach of the agreement to indemnify and hold
harmless Additional Defendants.
21. Scholl has failed to state a claim upon which relief
may be granted.
7
ADDITIONAL DEFENDANTS' COUNTERCLAIM AGAINST
DEFENDANT/THIRD PARTY PLAINTIFF SCHOLL
BREACH OF AGREEMENT TO INDEMNIFY
22. Additional Defendants incorporate herein by reference
the above answer and new matter as if set forth herein at length.
23. On May 11, 1999, Scholl executed a Release/Cooperation
Agreement wherein he agreed to indemnify and hold harmless the
Additional Defendants against any claim, damage, liability or
injury arising directly or indirectly from Scholl's professional
association with them or determination thereof. (Exhibit A).
24. On or about August 29, 2001, Scholl filed a
counterclaim against the Additional Defendants seeking to recover
in excess of 525,000 for his alleged equity share in the building
and company.
25. After receiving the counterclaim, the Additional
Defendants sent a letter to Scholl demanding that he indemnify
and hold them harmless against his counterclaim as required by
the Release/Cooperation Agreement. A copy of this demand letter
is attached hereto as Exhibit C.
26. Scholl refused to indemnify and hold the Additional
Defendants harmless from his counterclaim for an accounting and
payment of his alleged equity share in the building and company.
27. Scholl subsequently filed an Additional Defendant
Complaint against the Additional Defendants wherein he once again
sought damages arising from his alleged equity share in the
building and company.
8
28. Scholl is in breach of the Release/Cooperation
agreement by bringing, and then refusing to indemnify and hold
harmless the Additional Defendants from, the claims he is
asserting for an accounting and damages arising out of his
alleged equity share in the building and company.
29. Additional Defendants have been damaged as a result of
Scholl's breach of the release/cooperation agreement, including,
but not limited to, the attorneys' fees they are required to
expend to defend against Scholl's claim for an accounting and
payment of his alleged equity interest in the building and
company. Additional Defendants would suffer additional damage if
they should be required to pay Scholl any amount for his alleged
equity share in the building and company.
WHEREFORE, Additional Defendants demand judgment in their
favor and against Defendant/Third Party Plaintiff Scholl for all
amounts they expend defending against Scholl's claim for an
accounting and/or payment of his alleged equity interest in the
building and company, as well as any additional amounts they
should be required to pay Scholl as a result of his claim for an
accounting.
Respectfully submitted,
Date: September ~, 2002
By iL i ~~-W~V
o a an H. Rudd, Esqui e
M ees Wallace & Nurick LLC
0 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5405
Attorneys for the Additional
Defendants
9
VERIFICATION
We, Bruce E. Garner, individually and as Managing Principal
of Additional Defendant Sowers, Garner, Saylor Architects
Engineers, Inc., Dennis ~. Sowers, and Larry E. Saylor, verify
that the statements made in the foregoing document are true and
correct to the best of our knowledge, information and belief. We
understand that false statements herein are made subject to the
penalties of 18 Pa.C.S. §4904, relating to unsworn falsification
to authorities. ii~
Bruce E. Garner
Dennis Sowe s
Lar S for
RELEASE/COOPERATION AGREEMENT
Leroy R Scholl, intending to be legally bound, does hereby re]ease and forever discharge
Scholl • Sowers • Garner • Saylor Architectural Associates, Inc., Partners 4 Associates, 3 S's
Enterprises, Dennis F. Sowers, Bruce E. Garner and Larry E. Saylor, collectively and
individually, in every capacity whatsoever, from any claims, damages, liability or injury arising
directly or indirectly from his professional association with them or the termination thereof, and he
agrees to indemnify and hold them harmless against same. Leroy R. Scholl further agrees to execute
and deliver all such further instruments and perform all such other acts as may be reasonably
required in order to fully extinguish all his interests in and/or business relationships with said entities
and/or individuals, and to refrain from any negative public or private comment, conversation,
publication or action with respect to said entities and/or individuals. In exchange for the foregoing,
and for so long as Leroy R. Scholl has performed in accordance with same, Scholl • Sowers • Garner
• Saylor Architectural Associates, Inc., Partners 4 Associates, 3 S's Enterprises, Dennis F. Sowers,
Bruce E. Gamer and Larry E. Saylor shall use their best efforts to have Leroy R. Scholl and his
spouse removed as a personal guarantor of any debts of said entities and/or individuals, shall
indemnify him on a dollar for dollar basis to the extent he or his spouse are required to perform
under any such guarantees, and shall not contest any proper filing he might make for unemployment
compensation benefits.
Dated: /~A~ // , 1999
WITNESS: _
4 ;iG2~ ~ L~i ~%~
~~
~~~G ~
~~~ C- ~~
~Lero - .Scholl
~~s .fir
11/x. ~~t
ATTEST:
6~~//`~~%`l
Partners 4 Associates
By:
General artner
3 S's Enterprises
B-~ ~,_.~ ~_.
General Partner
Scholl • Sowers • Gamer • Saylor Architectural
Associates, Inc
Title:
voss.~~a
LEE SCROLL
120 Dorwood Drive
Carlisle, PA 17013-2131
June 21, 2000~~ Q y
JUN 2 22000
Bruce E. Gamer
SGS Architects Engineers, Inc.
One Tyler Court
Carlisle, PA 17013
Re: "3-S's Enterprises'
Partnership Termination
Dear Bruce:
Enclosed is one copy the executed "Release And Acknowledgement". I have kept the
other one for my files.
Sincer ly,
Lee
RELEASE AND ACKNOWLEDGEMENT
Leroy R. Scholl, intending to be legally bound, does hereby acknowledge that his receipt of
the sum of $1,697.00 from 3 S's Enterprises, a Pennsylvania general partnership, shall constitute full
and final payment for any and all outstanding interest which he may have or be deemed to have in
said partnership, which interest shall be fully satisfied and terminated by such payment, and agrees
that his acceptance of said sum shall release and dischazge said partnership and its principals from
any liability or obligation to him in any way related to such interest, and in every capacity
whatsoever, past, present and future.
Dated: J~ wLF_ 2l , 2000
WI~T~NESS:
-~ ~
~~ ;.
/ ~"
Leroy R chop
vo9s. ~.~~ ze«
One Tyler Court
Carlisle, PA 17013
717/2494569
Fax: 717/249-0284
Email: inPO~sgsarcheng.com
Dear Mr. Scholl:
On May 11, 1999, you executed aRelease/Cooperation Agreement ("Agreement' with
among others, Scholl, Sowers, Gamer, Saylor Architectural Associates, Inc., Dennis F. Sowers,
Bruce E. Gamer, and Larry E. Saylor. In that Agreement, you agreed to indemnify and hold
harmless Scholl, Sowers, Gamer, Saylor Architectural Assodates, Inc., Dennis F. Sowers,
Bruce E. Gamer, and Larry E- Saylor from any daims arising out of your professional
association with among others, Scholl, Sowers, Gamer, Saylor Architectural Assodates, lnc.,
Dennis F. Sowers, Bruce E. Gamer and Larry E. Saylor. We have recently received a
counterdaim filed in the Court of Common Pleas of Cumberland County at No. 01-4176
asserting daims arising from the professional assodation of Leroy R. Scholl, Jr. with the above
referenced entities and individuals. We hereby demand that you indemnity and hold harmless
Sowers, Gamer, Saylor Architects Engineers, Inc., formerly known as Scholl Sowers, Gamer
Saylor Architectural Assodates, Inc., Dennis F. Sowers, Bruce E. Gamer, and Larry E. Saylor
from any and all liability arising out of the counterclaim. We have retained an attorney to defend
us against the counterclaim and demand that you pay all legal fees and cosfs associated with
defending against the counterclaim. Please confirm in writing that you will honor your
agreement indemnify and hold harmless Sowers, Gamer, Saylor Architects Engineers, Inc.,
Dennis F. Sowers, Larry E. Saylor and Bruce. E. Gamer from the daims asserted in the
counterdaim filed by Leroy R. Scholl, Jr.
Sincerely,
c: Jonathon H. Rudd, Esq.
Leroy Ft. Scholl, Jr.
120 Dorwood Drive
Carlisle, PA 17013-2121
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.
By-C ~ i
Bruce E. Gamer, Managing Principal
CERTIFICATE OF SERVICE
I, Jonathan H. Rudd, Esquire, hereby certify that on this ~~
day of September, 2002, a true and correct copy of the foregoing
document was served by first-class, United States mail, postage
prepaid, upon the following:
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 N. Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
r ~; '~
;,
4 ~~
" J
j TI
Ci'r <~ j +) Q
-
-
~- _ ~I .~)
-~. -l
_lr.
~ i{
~"_J _R
~~i,_; r :i C
-
.)
~
CI
.:1
'n _~
d=
t~
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.
Plaintiffs
v.
LEROY R. SCHOLL, JR.
ROBERT CIANFICHI, and
CIANFICHI & SCHOLL
No. O1 - 4176 Civil Term
CIVIL ACTION -LAW
ARCHITECTURAL ASSOCIATES,
INC.,
Defendants
REPLY TO NEW MATTER TO COUNTERCLAIM
AND NOW comes, the Defendant/Counterclaim Plaintiff Leroy R. Scholl, Jr. and
makes the following response to the New Matter to Counterclaim of Sowers, Garner,
and Saylor:
118. The averments of the Answer with New Matter and Counterclaim are
incorporated herein by reference as if fully set forth:
119-126. Denied. The averments of Paragraphs 119-126 are conclusions of
law to which no response is required under the Pennsylvania
Rules of Civil Procedure.
WHEREFORE, Defendant, Leroy R, Scholl, Jr. respectfully requests that the
Court will deny Defendants' New Matter claim and enter an award consistent with the
relief requested under his Counterclaim.
Respe t b 'tt d,
By: ~
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 North Front Street
Date: ~~7/43
Harrisburg, PA 17110
(717)232-5000
VERIFICATION
I, Leroy R.. Scholl, have read the foregoing document and to the extent that it
contains facts supplied by me, they are true and correct to the best of my personal
knowledge, information and belief. This Verification is made pursuant to 18 Pa.
C.S. §4904 relating to unsworn falsification to authorities.
Leroy R holl
Dated: l ~Z
:269534 1
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document upon
the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same
in the United States Mail, Harrisburg, Pennsylvania, First Class Mail, postage prepaid,
as follows:
Jonathan H. Rudd, Esquire
McNEES, WALLACE & NURICK, LLC
P.O. BOX 116
100 Pine Street
Harrisburg, PA 17108-1166
Date: ~ /~,/D3
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717)232-5000
Attorneys for Defendants
312658
David A. Fitzsimons, Esquire
Sup. Ct. I.D. #41722
n c~ ~~~
,
C cN
`__
~
,~ .
_
7_
~~' ~
ri
..
A C'a ~ '' ~;
G _
~ i
~
~ '
. ~ ~
i
~
IN THE COURT OF OOMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SOWERS, GARNER,SAYLOR
ARCHITECTS ENGINEERS, INC.
Plaintiffs
v.
No. O1 - 4176 Civil Term
LEROY R. SCHOLL, JR.
ROBERT CIANFICHI, and CIVIL ACTION -LAW
CLSIVFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, INC.,
Defendants
v.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR AND SOWERS
GARNER, SAYLOR ARCHITECTS
ENGINEERS, INC.,
Additional Defendants
DEFENDANT/ADDITIONAL DEFENDANT COMPLAINT PLAINTIFF
LEROY R. SCIIOLL. JR.'S REPLY TO NEW MATTER AND COUNTERCLAIM
AND NOW COMES, the Defendant/'i'hird Party Plaintiff Leroy R. Scholl, Jr. by his
attorneys Mette, Evans & Woodside and makes the following response to the New Matter and
Counterclaim of the additional Defendants.
22. The averments of the Third Party Plaintiff Additional Complaint and
incorporated by reference as if totally set forth.
23. Denied. The averments of Paragraph 23 are conclusions of law to which no
response is required by the Pennsylvania Rules of Civil Procedure. To the
extent that a response is required, the document attached as Exhibit A, being
an instrument in writing, speaks for itself, and to the extent that it is
inconsistent with the averments of Paragraph 23 they are denied. By way of
further response, the Release Cooperation Agreement anticipated claims by
Third Parties against the parties of that agreement and not a situation at bar,
namely, where parties to the agreement itself have brought action against
Scholl.
24. Admitted.
25. Admitted.
26. Admitted.
27. Admitted.
28. Denied. The averments of Paragraph 28 are conclusions of law to which no
response is required by the Pennsylvania Rules of Civil Procedure.
29. Denied. The averments of Paragraph 29 constitute conclusions of law to which
no response is required by the Pennsylvania Rules of Civil Procedure.
WHEREFORE, additional Complaint Plaintiff Scholl that the Defendants' New Matter
to his additional Complaint be dismissed and that the Court enter an Order providing the relief
requested in the additional Complaint.
Respectfully submitted,
By: ~ ' ~
David A. Fitzsimons, Esquire
Mette, Evans & Woodside
3401 North Front Street
Harrisburg, PA 17110
(717) 232-5000
DATED: ~~~/~
:312659 1
VERIFICt~TION
I, Leroy R. Scholl, have read the foregoing document and to the extent that it
contains facts supplied by me, they are true and correct to the best of my personal
knowledge, information and belief. This Verification is made pursuant to 18 Pa.
C.S. §4904 relating to unsworn falsification to authorities.
L oy R. oll
Dated: ) ~ Z
:269534 1
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document upon
the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same
in the United States Mail, Harrisburg, Pennsylvania, First Class Mail, postage prepaid,
as follows:
Jonathan H. Rudd, Esquire
McNEES, WALLACE & NURICK, LLC
P.O. BOX 116
100 Pine Street
Harrisburg, PA 17108-1166
METTE, EVANS & WOODSIDE
By:
David A. Fitzsimons, Esquire
Sup. Ct. I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant
Date: ~ f i~~p3
312659
~ Gi ~)
c.,y -,
r
'
mi-
~
~ ~ ~,
3iY
C~ ~ i.~E~
~~ Q ~~.
~
~
rn
SOWERS, GARNER, SAYLOR
ARCHITECTS ENGINEERS, INC.,
Plaintiffs
vs.
LEROY R. SCHOLL, JR„
ROBERT CIANFICHI,
and CIANFICHI & SCHOLL
ARCHITECTURAL ASSOCIATES, LLC,
Defendants
vs.
DENNIS SOWERS, BRUCE GARNER,
LARRY SAYLOR, and SOWERS,
GARNER, SAYLOR ARCHITECTS
ENGINEERS, INC,
Additional Defendants
TO THE PROTHONOTARY:
PRAECIPE
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 01-4176 CNIL TERM
CNIL ACTION -LAW
Please mazk the above-referenced matter settled and discontinued as to all claims,
counterclaims and cross-claims between Plaintiffs, Defendants, Cross-claim Plaintiffs, and
Cross-claim Defendants.
DATE: \~\~'~\~Zj
NATHAN H. RUDD
ounsel for Plaintiffs and
Counterclaim Defendants
DAVID A. FITZSIMONS
Counsel for Defendants and
Counterclaim Plaintiffs
382106v1
r... : Gipld9@YtS+='nr5'-'-.Fbth'@~il+~£~Tm"aYSW k13~J5A - .. a ,. - . ..., -d. .,..: . ~
1 3S8 1
•.
t.~i
_~
~
E
_ r
~a I
L:+...
~....
/ c ...._
f.t C.i
l.~ ....~'~ _
/~ ^-I