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Home My WebLink About01-06500 ~ ,.1 I',. ~,=,"i'lj;(>,~~' Fo'm W-4 Department of the Treasury-Internal Revenue Service I OMS No, 1545-0010 Employee's Withholding' Allowance Certificate E,pl,,, '-31-S5 (Rev. January 1983) 1 Type or print your full name 2 Your social security number / Sco7/ W/LSO/ll 17-!()/J?m/f /'o/S-[,2-/')"-I6'. Home address (number and street or rural route) I g--$ingle 0 Married 5of? IflJ.DIFf j1)fI 41)E;VVi:::- 3 Marltai 0 Married,butwithhoid at higher Single rate City or town, State, and ZIP.: ode Status Note: If married, but legally separated, or spouse is a -" [; iho t:: I JI() 4 J nonresident alien. check the Single box. 4 Total number of allowances you are claiming (from line F of the worksheet on page 2) . J 5 Additional amount. if any, you want deducted from each pay. $ 6 I claim exemption from withholding because (see instructions and check boxes below that apply): ..~_~ a 0 Last year I did not owe any Federal income tax and had a right to a full refund of ALL income tax withheld, AND ~ b 0 This year I do not expect to owe any Federal income tax and expect to have a right to a full refund of I Yea,r / / ALL income tax withheld. If both a and b apply, enter the year effective and "EXEMPT" here. . ~ /0/82- c It you entered "EXEMPT" on line 6b, are you a full.time student? . . 0 Yes 0 No Under the penalties 01 perjury, I certify that I am entitled to the number of withho ing allowances claimed on this certifieale, or if claiming exemption from withholding, that I am entitled to claim the exempt status. / _ _ Emplo ee's signature", -' ttL Date ~ /0 ,.; / / . 19 7 Employer's name and address (Employer: Complete 7. 8. and 9 only if sending to IRS) 8 Office 9 Employer identification number code "'~h.____~_~_.____.__;____.__~__n____. netllr/'t "'''I'lll' till, lin"! r.l",. .1.., t...... ~".. ..~ .Iol.. '"...... '-..... . ,","~. r...~.. ..... 1....'0. ....... I... "~'" ~~.."...... ~.__~".__~__. _~__.~ .u__.__~_____n_h~ PLAINTiff'S EXH\S\'l' ~ >Ii . , ,- ~ d~b!""i'\li~~"- MASON - NORTON COMPANY HERBERT N. PREBLE. PRESrDEN'l" 310 S. TENTH ST.. LEMOYNE. PA. 17M3 PHONE 717.737- 4558 TOILET PARTITiONS OFFICE PARTITIONS METAL WINDOWS ORNAMENTAL METAL WORK AS a condition of my e~ployment with Mason-Norton Company, I hereby FIRE DOORS agree that, if for any reason I must seek employment elsewhere, that 1..0UVERS for a period of 5 years following the termination of my employment PLAQUES AND LETTERs with Mason-Norton Company, I will not work for any other company, FIRE EXTINGU ISHli:RS individual or myself in competition with the Mason-Norton Company or CHALKBOARD AND TRIM Herbert N. Preble, throughout the Commonwealth of Pennsylvania. SKYLIGHTS VAULT COORS I (;- / I - ?? /)/ NAME : -5 C () 7T fA./;j. 5'" A-" 7/1,:/.;1;;>;/;7 #' ADDI\ESS: S-ct? fAl-O/;1-;!//l I?Vf'A/i/S- PASS WINDOWS DATE: X.RA.Y PROTECTIVE MATERIALS LINEN CHUTES L.:/TJ() V A/E rll /'/O,y? WIRE_MESH PARTITIONS AND WINDOW GUARDS CURTA!N CUBICLES ROLLING STEEL DOORS HOLLOW METAL AND K"L"MElN DOORS ANO FRAM~ P~4JNll;:Ff<r: -,\'''ilEU1 ,Of ). TEl.EPHONE BOOTHS SATHLlFT6 ~ LOCKERS AND SHELVING ~~ . ~~ ~,"",,,,...... , ~@89 Form W-4 " ;~~....b.~~ .J " ~U.i!liliilllllll~"-N " - ~omJliMj~~~~~;!!!2',~ii ~.,&\ Department of theTreasury ~&llllnternal Revenue Service Purpose. Complete Form W-4 so that your en1ployer can withhold the correct amount of Federal income tax from your pay. Exemption From Withholding. Read line 6 of the certificate below to see if you can claim exempt status. If exempt, only complete the certificate; but do not complete lines 4 and 5. No Federal income tax will be withheld from your pay. Basic Instructions. Employees who are not exempt should complete the Personal Allowances Worksheet. Additional worksheets are provided on page 2 for employees to adjust their withholding allowances based on itemized deductions, adjustments to income, or two-earner/two-job . situations. Complete all worksheets that apply to your situation. The worksheets will help you figure the number of withholding allowances you are entitled to claim. However, you may claim fewer allowar:1ces than this. Head of Household. Generally, you may claim head of household filing status' on your tax return only if you are unmarried and pay more than 50% of the costs of keeping up a home for yourself and your dependent(s) or other qualifying individuals. Nonw~ge Income. If you have a large amount of nonwage income, such as interest or dividends, you shQuld consider making estimated tax payments using Form 1040-E5. Otherwise, you may find that you owe additional tax at the end of the year. Two-EarnerjTwo-Jobs. If you have a working spouse or more than one job, figure the total number of allowances you are entitled to claim on all jobs using worksheets from only one Form W-4. This total should be divided among all jobs. Your withholding will usually be most accurate when all allowances are claimed on the W-4 filed for the highest paying job and zero allowances are claimed for the others, Advance Earned Income Credit. If you are eligible for this credit, you can receive it added to your paycheck throughout the year. For details, obtain Form W-5 from your employer. Check Your Withholding. After yourW-4 takes effect, you can use Publication 919, Is My Withholding Correct for 1989?, to see how the dollar amount you are having withheld compares to your estimated total annual tax. Call 1-800- 424-3676 (in Hawaii and Alaska, check your local telephone directory) to obtain this publication. Personal Allowances Worksheet A Enter "1" for yourself if no one else can claim you as a dependent. { 1. You are single and have only one job: or } BEnter" 1" if: 2. You are married, have only one job, and your spouse does not work; or _ 3. Your wages from a second job or your spouse's wages (or the total of both) are $2,500 or less. e Enter" 1" for your spouse. But, you may choose to enter "0" if you are married and have either a working spouse or more than one job (this may help you avoid having too Iittie tax withheld) . C D Enter number of dependents (other than your spouse or yourself) whom you wili claim on your tax return . D E Enter" 1" if you will file as a head of household on your tax return (see conditions under "Head of Household," above) E FEnter" 1" if you have at least $1,500 of child or dependent care expenses for which you plan to claim a credit . F G Add lines A through F and enter totai here . . . .. G . If you plan to itemize or claim adjustments to income and want to reduce your withholding, turn to the Deductions and Adjustments Worksheet on page 2. . If you are single and have more than one job and your combined earnings from all jobs exceed $25,000 OR if you are married and have a working spouse or more than one job, and the com- bined earnings from all iobs exceed $40.000, then turn to the Two.EarnerjTwo-Job Worksheet on page 2 if you want to avoid having too little tax withheld. . If neither of the above situations applies to you, stop here and enter the number from line G on line 4 of Form W.4 below. For accuracy, do all worksheets that apply. A B - - - - - - - ~ ~ - - ~ - - - - - - - - - - - - Cut here and give the certificate to your employer. Keep the top portion for your records. Form W-4 Employee's Withholding Allowance Certificate Department of the Treasury ~ For Privacy Act and Paperwork Reduction Act Notice, see reverse. Internal Revenue Service 1 Type or print your first name and middle initial Last name 0'o:.;-t::C ~J. JIiL' I" -4- IS-S~;2- Home address (nu?,ber and street or rural route) { 0 Single )8::Married QoOj tJaJnJoRTf( _D ill: 3 Marital 0 Married. but withhold at higher Single rate. City or town, state, and ZIP code Status Note: /fmarried, but legally separated, or spouse is a . f'vf P ILL- I 70 1/ \ nonresident alien. check the Single box. 4 Total number of allowances you are ciaiming (from line G above or from the Worksheets on back ilthey apply) 4 5 Additional amount. if any, you want deducted from each pay. .... .... 5 61 claim exemption from withholding and I certify that I meet ALL of the following conditions for exemption: . Last year I had a right to a refund of ALL Federal income tax withheld because I had NO tax iiability: AND . This year I expect a refund of ALL Federal income tax withheld because I expect to have NO tax liability; AND . This year if my income exceeds $500 and includes nonwage income, another person cannot claim me as a de endent. If you meet all olthe above conditions, enter the year effective and "EXEMPT" here ...... 6 19 7 Are you a full-time student? (Note: Full-time students are not aut aticallyexempt.). . . . . . Under penalties of perjury, I certify that I I e Fto the number of withhold! alia ances claimed on this certificate or entitled to c1~im exempt status. 1.1 '" Date.. . ~ ,198 Em loyee's signature.... e-'V1 /:- dress (Employer: Complete 8 ~nd 10 only if sending to IRS) 9 Office 10 Employer identification number code (optional) .. . P~A'NT'ff'S EXt-nSrl' ?~ OMS No. 1545-0010 ~@89 o L.~.~~ ,"-,,- P.>." ,'",,:. ~'cil'-r,~'1 , THE GREATER WEST SHORE WAGE TAX BUREAU, P. O. BOX 656, CAMP Hill, PENNA. 17011 TNIS FORM MUST BE COMPLETED BY THE EMPLOYEE TO ESTABLISH RESIDENCE. EMPLOyERS: USE THIS INFORMATION TO COMPLETE QUARTERLY TAX RETURN FORM 511 AND RETURN IT TO THIS TAX BUREAU. UJ U Z UJ e~ "'z "'0 0: '" "-~ 0>- >- '" 1-" ",0 u>- -z ~iX I-~ 0: '" I~ I ,.5'r"Gti FIRST ~J / 1-.\ ,) /'0./ MIDDLE 1/1;) I:IT] "7.1/0/ I EMPLOYEES NAME I 'Ii-! L! r-11"/ fl SOCIAL SECURITY NUMBER LAST MAILING I -~,.. I ,- --. I \""r,j j".., - ~ ADDRESS _...J.td"1 L-'\if:::-A...f ItJ't'. " /~.- II, I::- STREET, 1'1.0. OR !lOX NO. C"l/YJ/' I-Ir u POST OffiCE (/,4 STATE: //e> III tiP COOE n " , , m ~ RESIDENT MUNICIPAliTY C,.-q-'rnp /11 t i EI.lPLOYEE PSD El.lf. PSD. CITY-1l0RO-TOVHISHIP WHERE YOU LIVE (DO NOT USEJ lIDO NOf USEl1 /7 ,/;1 (' ? 17(.. Yf fl.lPl-OYER Ie ill' I~ ;'iSO\. -Iv:: ,,'ld (t I'-/I~/I.Y 3/0 S /fl/!, )Tf(ff) JaJrr//tf /:} I I EMPLOYERS NAME ADCkESS / I I :c CERTIFY THAT INFORMATION CONTAINED HEREIN IS TRUE ~ . n \ I 1/ AJolD CORRECT TO THE 8EST OF MV KNOWLEDGE AND BELIEF, <:: ~ ~ L'I,,;. ~ ~ iA_/rYv'7Y'"'-(\ '-- SIiJ,tU,'l'URE \IIlE3l1i5-41' 100 NOT USEl c; );<c )8-9 , CATEI W ~~ -~ ,'~- , " ''''1.1 .. ~,~.,.""ih'-' MASON - NORTON COMPANY HERBERT N. PREBLE. PHE~DENT :110 S. TENTH ST.. LEMOYNE, PA. 17043 PHONE 717~737-4!5:S8 TOIL-ET PARTI"tIONS OFFICE PARTITIONS METAL WINDOWS ORNAM'NTAL METAL WORK As a condition of my €~plo~ent with Mason-Norton Company, I hereby FIR/:: OOO~S agree that, if for any reaSOn I must seek employment elsewhere, that LOUV'::R8 PLAQUES ANO LETTERS for a period of 5 years following the termination of my employment with Mason-Norton Company, I will not work for any other company, FIR~ EXTINGU1SHE~6 individual or myself in cOmpetition with the Mason-Norton Company or CHALKBOARD ANO TRI~ Herbert N. Preble, throughout the Commonwealth of Pennsylvania. SKYLIGHTS PA6~ WINDOWS DATE: I. /.. . Ir-. (' "~I - / . /)- '/ ;' I . (. ,. ,,' .-'-~ , I ..... .. '''''-;' -<.,(.,<CC'cc.Lv..., !. ! <-.-.' VAUL-T DOORS NAME: --~. .~. ,- ,'i, r ~ ' X.RAY PROTECIIVE MATERIALS ADDHESS: ;;.;...<.('/ f-v'':-->\'I-rrf\!f";F-:'T-f1- /}, ~..- ,~- "- -, , ~. il-.. LINEN CHUT~ c.' , ..i_iif-' IIIL L ). I. . 'J/' 'I ,,~t !, L /, WIRE.MESH PARTITIONS AND WINDOW GUARJ)S CURTAIN CUBICL.ES ROLLIHG STEE~ DOORS TELEPHQNE BOOTtiS BATHL-IrT'S HOLLOW METAJ.. AND KALAM E':IN DOORS AND FRAMtUi LOCI(E~S AND SHELVING PLAINTIFF S EXHIBIT 4 /"(\.R- "" .~. - , I', i ,,- ",,- ".'~~, .' SEP-13-20B1 15;56 W li'-ICO W t NDOv) HOSTt:TTER-5UPPL Y 314 725 1809 P.02,05 NO. 116 P. :!-/4 "aSEP.13.2001 1:10PM , . ... ..,.:. r 11"1 'c , HOSTETTER SUPPLY CO, INC. BUILDING & ARCHITECTURAL SUPPLIES ---.. ,-" ' .~ ,.. TGLeJ'f10NE ?lH54-7e'71 .AX ?17.~1BO P.o. BOX 367 YORl<, PENNA. 17405 1880 W.MA:;ONAYe TO;WINCO wmoow COMPANY ATIN: JACK HORNSEY\LEE HEADRICK DATlS:9\13\01 PROJECT:CECIL CO. COMMUNITY COLLEGE-CECIL CO.. MD. ALUMINUM WINDOWS- SEE CUSTOMERS ATTACHED QUOTE DRAA JACK. lRECIBVED YOUR LETTER THE OTHER DAY CONCERMNG THE TERRITORIAL ISSUES CONCERNING MASON.NORTON CO. & MEDP'ORD. NOW 1 HA VB ANO'l'Bmt CUSTOMER WHO HAS ALL BUT LEFT TOWN WITROtn' WINCO IN ZEPHYR ALUMINUM, JEFF GOOD AND I ALSO SI:1ARED A CERTAIN RELATIONSHIP COMPORABLE TO A KORSAK GLASS. Bom HA VB STEERED AWAY FROM WINCO DUE TO IT'S LACK OF SERVICE AND HANDS ON APPROACH FROM IT'S CURRBNTREP., ZEPHYR, WHOM HAD MANAGED IN THE NEIGHBORHOOD OF 250,000 AND BEYOND YEARLY, NO LONGER SOLICITS A PlUCH SIN~ MY DBPARTURE,IT ALL ADDS UP JACl{ AND WAIT TIL YOU TALK TO TIM KORSAK, HE'LL GIVE YOU TRUTIIS 100llll I'M ImNDING nus TO YOU FOE, A PR,ICE REQUEST, IF YOU WISH TO BID US GREAT, IF NOT THAT TOO I UNPERSTAND.SOONBR OR LATER TIME WILL SPEAKPOR ITSELF.AND WJmN !HAT TIME HITS. DON"! EVER FORGET WHERE I AM. IN CLOSING, rLLSAY THAT THIS HAS BEEN A VERY DIFFICULT WEEK TO BEAR, ALL THAT HAS BEEN LOSITO THE GREAT COUNTRY WE UVE IN AND HOW WE.AI:L KNOW AGAIN,WB SHALLlUSIi UP AND MEET IT'S CHALLENGES SQUARE IN FACE. I PRAY FOR US ALL ,AS.THB tlNlT~};) STATES ,ONE TIii\M THAT JUST WILL NEVER QUIT,NEVER BACK DOWN AND WILL LIVE TO RAISE IT'S FLAG \VtTH P;..AiNTlfF'S EX-HI!?J!' tj~ - ~ " .", 1 '-. E~ L.-"~,,:,,,,,. '" ;2.:"". <~~' ,i.-o.:U< SEP-13-2001 15:56 WINGO WINDOW SEP.13.2BBl 1:10PM HOSTETTER-SUPPLY 314 725 1809 P.03/05 NO. 116 P.Z/4 f " .. PlUOE IN THE BEST OR WO:lST OF TIMES, FOREVER THE GRBATIlST CO'lJNTIlY SHALL WE BE. GOD BLESS AND HAVE A GREAT SBASON.REMAINDER WJSE ANYW AYlll! SCOTT W. nruMMAooSAI.ES\SERVICE ~* o.-'~ . I' - l ~,;.w- ~~"~~iiI_~;,,,,,,,,,-,t ' , SEP-13-2001 15'57 WINCO WINDOW l3~p..~S.e0e1.4: 1'10f'11'1l,,~OSII:.1 /ULSUPPI..Y lEI'HVlo! IlLUMINUM 314 725 1809 P,04~05 NO.llG 1'.3.-''' ..~ " - . IIIIIBa ,0 . .-"I'ALc..NtlN"'.,..! hI. T1MORE. l-A~CASnm.. WILMINGTON FACSIMILE TRANSMITTAL DATE: TO: AnN: Ff<<)IIII: S$ll~r.nber 12. 2001 HOSIt;II~SUPPl-Y SCOTT THUMMA JEFF GeOD fAX 1 8(14-4160 PROJECT NAME: CECIL COMMUNITY COJ.LI!!GS . EDUCATION CENTER REFIllRliNCE: - 'I .. TRANSMITTING OFFl(;E o BALTIMORE:, MO. . Il!l LANCASTER. PA. C WIL.MINGTON. DE. fAX NUWER PHONE NUMBER exTENSION 1-410-560-ll9a2 1-717~97.1389 1-30:!.571.oS91 1-410-5ao..o1ll2D ~ 1-11N9741il18 --- $C31l 1-302-571..0585 - -NUMaeR Of PAGES (INCWDING THIS SHeeT) HARD COpy TO FOLLOW Y'E$ 2PGS. X NO COMMENTS: NIilIm PRlCI BY 12:00 NOON 11.17..01. Material labor Hours fy-ril.tl ,.., >:>cl"-13-2!:J01 15:57 WINeD WINDOW '. - .~'N' ' , '""'f'~ _0' , 314 725 1809 1".05/05 " Iil~ .13. ze"'~.4: .J. :l0P~173\t.lq~E:R-5UPPL- '( ZEPHYR ALUNIr.tJM (;.,.eu L Cel4-oA. 1/,,, 'ry C'f/i.1, f.7-t- -c- ,:;.,. ,t '1 C tI jPf7l4.r" 'f f'<l Vt4-n.o-V ([:f"Ilfn:'lt.. 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P-_...._---_.....~- ..,........__ ._,--- --------...?-.-..-... ....... _. ..-~..._...""....__ -_.........._a~_. --.......... .. _.---_........,"'~-'.......,--,_._....._..........,- .......... .-..-......--........ --......--.. ---.. -..-- ......... . ....-.... ... ,...-..------...~._-..._ ,_ -I ~.,....._,....._____ -..._~.,- ,~....,_.....- -.--- --...-....".......- ............. ...-.;......... ----""--"---""',........ -,."..".-.--.-.....----..--- --.... ----..-..--.....-.-.-- ........--..-.---...----...-.....-.......-......... ... .......-........----- , ~ 1___. _.__ __.___....... '-.'.....--.-.-----.....--.....,......"'..."'.-...-...,....---.....-..--.--....... .. -- - --....,..--- f~ -.......-,............ ...,,~-~._..._......_..... ....,. -..-." _....__.--_....__...~..._.......... ,=_..--.._--_..._-~... -== .-,........-. """"-- .............. "... ........... ....... . .,.... ---_.~--~....__..--.-.--.,.,.-_._.... .....- -....--..-.--.......-...... .....- -............--- ......~~~._...--..--........ . 'f'... .-. . ....~,._-....."..~ ~.............I...'. ......___.-_.~_,. "1'.-.---.-. I TOTRL P. 05 -", ~ ~- ;..' ;..1 "",',," .~. ~ ~'" '"""'"""""""~"--<I#I~'il;"';#~" t. " " . v " FACSIMILE TO: SUBCONTRACTORS a: SUPPLIERS DATE: S/16/2001 FROM; JASON KRICK, ESTIMATOR COMPANY: FAX#, # OF PAGE::S: ;3 (INCl.IJDtNG COVf:iR PAG[:) SUBJECT: CENTRAL PENN ADVANCED TECHNOLOGY eUILDING COMMENTS: DEAR SUBCONTRACTOR OF!. SUPPLIER, PLEASE RE:VIEW THE FOLLOWING LETTEF!. WITH INFORMA,TION RE:GAROING THE ABOVE REFERENCED pROJECT. IT 15 MANDATOR.Y THAT YOU BE PRESENT AT THE flEF"-RENCE SUBMITTAL MEETING WITH SUBMISSION SAMPLES RE:ADV FOR APPROVAL PL.EASE o;;lGN ANO DA1'E THE ENCL.OSED LETTER AND FA>: SACK. IF YOU HAVE ANY QUESTioNS, PLli:ASE CALI... THANK YoU, JASON E. KRICK PLAi-N'l'i"" :; EXH1B," Co ./J'I.f<. IF YOU 00 NOT RECEIVE ALL PAGI!:S, PLEASE CAl..l.. (717) 432-3429 AND ASK FOR THANK YOU. ORIGINAL DOCUMENTS EN ROU'rE BY MAIL: _ YES _ NO JASON SIr 'd mE 'ON BOX 432. DILI-SaVRG, PA. 17019-0432 (7' 7) 432-7343 . EMAII-:jkrick@lqbarassoc.com ':lOSSV 11%01 l'id;G:~~GGZ '9; 'f.efi 4 BARL.O CIRCL.E .. P.o. (717) 432-3429 .. FAX: ~ "~ ,. ,,- " ,,,L.;.~ "-,-,, " ~~'" -~'""'W~:: , May 16, Z001 MflSQ" NortOlJ Company, me. 310S. TcnthSt. Lcmayne, Pa 171U3 ..4.ltcntit;m: 8ClJtt Thrmrma Ref: Central Pen" Advllilel!d Technology Ba!lding j Summerdole, Pa Gtmtktnnt: CongrallLlalion9! This letter Is to co"jlmt LOBAR ..4.SS0CIA TES intent to award your trtJde portion far the above referencea project. Your Work consists of the follow Items: Display Boards, Flagpole, Mailbox LOBAR ASSOCIATES Is happy to h""ethis appor/unity. W. are also pleased fa hove your company as part of the te(I(YL The schedule is ve'Y challenging and will not allow any delaysfrom .",beontractors or suppliers. P1ell5e get your submissions ready immedUJt.lyl There ""U he a Submission Meeting on May 22, ZOOI at the CoUege Main OfJU:e /beated on Co/Jqe Hill Rd. III Su_udale. Pleue R""j.... YOUl' TUfle Slot on the attaclted .hed to pr...""'yoUJ' sllbmiltalsfor the mtderial yoa are Jurniohing or InsU1l1ing. Mal<UllTe you are pN!Jmt 15 minaw early. We need physkal sampl~, technical data iiheets, and color ahOY/!< Jor what you are :mpplJ>ing. If you can h""e .hop dr/lWingY 11'041' at that time, that would be 1fI'eat, hut.... undentand if you Can nat haPl! rhent tIt this meeting. The Intent is to have the submittals r..iewed /lnd approvedtlle Sl/1tU day. A Pu",hase Order or SubcontJ'aetwith plans and specswil/follow shortly. Pletl$e call our office with any questions you may have. We lookforward to working with yOU, Ve", truly yours, W/jAfrv ~kk 1J;rtimator JEK;wlh Copy: Steve Dil/er Ma1'1l Dill.. Jason KrIck Lee Eichelberger Central File Please a&nt>Wl4dge reoeipt by .i"6 and fl1J(iJJg bade. 11Iank Jiou. RECEIVED BY: DATe: 4 BARLO ORCLE . P.O. BOX 431 DlLLSBUf{a. FA 170J9-0431 TFT.' 17/7) 43)-3419 . FAX: (717) 43].7343 . E-Mail: Iobal111!o@lob'Tossoc.com WEB: www.loharassoc.cOI>I U7.'d m['ON ':lOSSvmo'j ildZG:9 iOOZ'9;'r.'A ~'~ . ,- I ~_'"Io , ~ " L..w. ~,~~ - "''"''''';{;.'~~;-:i REVISED PROJECT #01127 CENTRAL PENN COLLEGE - NEW ACADEMIC BUILDING SUBMITTAL MEETING SCHEDULE May 22, 2001 @ 8:00 a.m. TIme Trade 8:00 Elevator 6:15 Masollrv 6:25 Stud$ - Drywall. Insulation. Ceilings 6:50 Painting 9:00 Mech\'lnical- Plumbing 9:45 Brea~ for Groundbreakinll 10:45 Electrical 11:45 SitewPrk LUNCH SERVED 12:15 Storefronts - Windows 12:45 Mil/work - Casework 1:10 Roofi!tg - Rubber/Metal- BuildinG Waterproofing 2:00 SDecijllties IAIII 2:45 Carpet (Brina Manufacturer's ReD. and Installer) 3:15 Ceramic TIle 3:35 Food jielVice 4:00 Ope...ble Partitions 4:20 Doors & Hardware 5:00 Com Die/ion copy: EstImalors Marv Charlie Lee Nicole Cenlral File #01127.08 Darrell Sunday lim Spangler Paul Whipple r;;,'~ 1.17, '0 M '~n~~v ~VRn1 W~7r,:Q ;~i,,7 'Qi 'IiBW 1,;, ~" ~ . -~ < -,' '. '.- . -. r..wM~~_~;:'i .JUl... J..c::..c::~l::ll "I-;;O':;lt"'l~l NU.Cl""( 1-'.1/1 )0=' .;- - . ) '- FACSIMILE TO: SALG:SPERSONS DATE: 7/1212001 COMPANY, M.o.SON NORTON COMPANY FROM: .JASON KRICK, ESTIMATOR FAX#: 717-761-8287 iF OF' PAGES, (r No..U,01 Nt:. eoVEFl PAGE:) SUBJECT. CE:NTRAL. PENN COLl_EOE APVANCJ;P TgcHNOLOGY BUILDING COMMENTS: GENTLIOME:N. THIS I.ETTER IS TO INF'OFtM YOU THAT MASON NORTON COMPANY WIL.1. NOT BE PROVIDING PRODUCT FOR THE AeOVE REFERENCED PROJECT. THE: OWNE:R HAS REQUESTE:O WE USE HIS SUPPL.IER FOR THIS PROJECT. WE AI"OL.OGIZE FOR ANY INCONVS:NIENCIl: THAT YOU HAVE INCURRED FOR THE SUBMITTAL PROCESS. THIS IN NO ME:"'NS H"'S ANY NEGI>TIVE BEARING ON OUR BUSINESS fiEL.ATIONsHIP WITH EACH OTHER IN THE FUTURE:. WE L.OOK FOI'iWARD TO WORKING WITH YOU IN THE NEAI'i FUTURE, ELV, L-~ c """c ~dz.- ,/rC/tA (8 ~ Y)/11-"') a" "VJ<- (? ) la-P L/!~ IF YOU DO NOT RECEIVE ALL PAG(';S, PI.. EASE CAL.1. \7 17) 432-34,29 AND ASK FOR JASON THANK YOU. ORIGINAL DOCUMENTS EN ROUTE BY MAIl.: _ VJ;;S NO 4 SARLO CIRCLE. P.O. BOX 4:32. . DII.L$BURG, PA . 17019-0432 (717) 432.-542.9 . FAX: (717) 452.-7543 . EMAIl.,: jkrick@lobara3SOC.com Nl\ff'S P\.~}\-\\6\l IF ~ I _~~.'d~'~oM"~~'_"_...~~~""",",",,' W' ' .~ ~_l--", ~~, ..~-., - ~~~""""'~,;.,\'-", ,',,,,,,,_,,,,",;:1';"':1\'" MASON-NORTON COMPANY, ~C. o R D E R R E C o R, NO SHIPMENTS WID 310 S. TENTH STREET CREDIT APPROVAL LEMOYNE, PA 17043 S H E E T APPROVED BY: CUSTOMER: ACCOUNT#: 00876 ORDERll: 20218 Lobar Associates, Inc. P.O. Box 432 SOLD BY: SWT 4 Barlo Circle Dillsburg, PA 17019-0432 FILE DATE: 5-16-01 PHONE: 717-432-3429 FAX: 717-432-7343 TAX EXEMPT: _YES ..x..NO NUMBER: NOTES: CREDIT REQUESTED: - YES _NO CREDIT RECEIVED: YES _NO SALE MAT'L: 11,910.00 - BOND CO. REQUESTED: _YES _NO SALE INSTALL: BOND CO.RECEIVED: _YES _NO BONDING COMPANY: DATE BOND NUMBER: C.O.R CUSTOMER ORDER: MATERIAL SH RE SD PO MFG. CIO #1 $ DATE: 0; 16 01 FP IX AmG',e/CA.<.I CIO #2 $ verbal ord-of-int JOB#: MB rx Auth-Flor CIO #3 $ P.O.#: VDB X Marsh CIO #4 $ P.O.#: C/O #5 $ P.O.#: C/O #6 $ P.O.ll: C/O #7 $ P.O #: C/O #8 $ SIGNED QUOTE DATE: C/O #9 $ SIGNED BY: . C /0# 1 0 $ *SPECIAL INSTRUCTIONS*: TOTAL ORDER $ 1) Invoice by: . 2) Qty. Shop Drawings: . 3) Don't Delay Sent: c:P FINAL PRICE $ 4) Delivery Req'd: /0, ('20C'1 5) Commission File: _YES _NO \ .. FI NAL COST $ 6) Installation By: FINAL PROFIT$ ~:1 ~JP&1t. ADDRESS: J i ~-rtc ~ COMM. MAT'L !Ii ~1/f: ,?~93 W-f-st31 EST. PROFIT !Ii 1,121 00 ~. g: Iql~U'J.~ 7 J.JJ:: 1'1 if DIFFERENCE !Ii JOB PHONE: <L -I X: FOREMAN'S NAME: (' J, J,' r'T . Ill. I CLOSED BY: ARCH !TECT: Darrell F. Sunday Assoc. DATE CLOSED: 1215 Manor Dr., Ste. 150 Mechanicsburg, PA 17055 PLANS DOWNSTAIRS: PHONE: 717-766-2700 FAX: 717-766-2245 SET#: ......,....- """"~, ~ -I < .j ~~ ~ .1..... -- ~~-""",,"-"if,~ SEP-12-2001 14:53 WINCO WINDOW 314 725 1809 P.02/02 9 ~ w I N c o ~ 6200 Maple ,Avenue St. Lows, MiSSOuri 63130 (314) 725-BDaS (800) 525-8089 FAX 01.1) n,;.H19 Sejltember 11, 2001 Scott ThUIl1I1la Hostetter Supply Co, Inc. P.O. Box 367 1&&0 W. Masoll Ave. York, FA 17405 Subject: TenitoIy admiIlistl'lltion. Dear Scott, Thank yon for your int<:res! in Winco Window Company. As I'm sure you kru:lw. Wineo bas tong-51lllldlng relationships with our independent represeolallves. Many of these reps have franchised and protected lellilOnes. Therefore, any business YOll wish to do with Winco WindOIV Company mU5t be directed tbrougll the appropriate rep. I Ulldcrsrand that some quOleS were Issued to you in good faith. These quoteS will be honored in the case that you are the winnillg bidder on these jobs. Please undersllmd that this Icller is nece55alY to maintain StrUcture and order with Winco's relationship wlth it's representatives. Again, thank you for your interest in Winco Window Company, I am always available for further cliscY5sion. /~ PC; G;mtt Miller BradBames Estimating Mllson Norton (fu..O PLAdNTlFC'S EXHiBiT q rr...R Windows to meet todtly's design cballenges. TOTAL P.02 ., y' . ~ ,~ I: :__;rn:~A:' :~' -, , ,,"--~-; -'""" -~"~, ,-, MASON-NORTON COMPANY, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - EQUITY SCOTT W. THUMMA, Defendant NO. 01-6500 EQUITY TERM IN RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION BEFORE OLER, J. PRELIMINARY INJUNCTION AND NOW, this 11th day of January, 2002, upon consideration of Plaintiffs motion for a preliminary injunction, fol1owing a hearing held on December 27, 2001, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as fol1ows: 1. Pending further order of court, Defendant is enjoined from continuing his present employment with Hostetter Supply Company, Inc., in violation of the covenant not to compete sub judice, for a period of one year from the effective date of this preliminary injunction, 2. This preliminary injunction shall become effective upon the posting of a bond or cash in the amount of $55,000.00, in accordance with Pennsylvania Rule of Civil Procedure l531(b). 3, In the event the requisite bond or cash is not posted or deposited within 20 days of the date of this order, the order shal1 be deemed automatical1y dissolved. BY THE COURT, IfINV;\-!J,S'rN::d }J"n".-' ~ .-- ", 'I~~ >J1l1,!jJ ,/ ,:::=)-,/,~:):') "j .,'I,j'''! . I',:"'" ..:,'" t.- . J ~-~ Ii ! I ia j ::,~.i ).li\.nr.'.,' , " ....,.'.~) .WI",-,.'" ,_'" __ I:,' "00l'-~ >"J . , " John W. Purcell, Jr., Esq. 1719 North Front Street Harrisburg, PA 17102 Attorney for Plaintiff Stephen S. Makowski, Esq. 3110 East Market Street Suite E York, PA 17402-2512 Attorney for Defendant "' '^ I -~' i." _ ___" >;~~ J. -,' . ~ , 1- 11 -0.7- ~ ."-"'~::;'-.:....l .iii",,''''~i~' " ,-I -, --, ".' ..,t "".,-~ - .- ',;,-'.-' ~ - ~~~ MASON-NORTON COMPANY, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - EQUITY SCOTT W. muMMA, Defendant NO. 01-6500 EQUITY TERM IN RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION BEFORE OLER, J. OPINION and PRELIMINARY INJUNCTION OLER, J., January 11,2002. This equity case arises out of an alleged breach by an employee of a covenant not to compete incident to his employment. For disposition at this time is a motion for a preliminary injunction filed by the employer, seeking preliminary enforcement of the covenant. A hearing on the rnotion was held on December 27,2001. For the reasons stated in this Opinion, the motion for a preliminary injunction will be granted. STATEMENT OF FACTS The evidence presented at the hearing on Plaintiffs motion demonstrated the probability that Plaintiff will be able to establish the following facts at trial: Plaintiff is Mason-Norton Company, Inc., an "s" corporation solely owned by George O. Preble, its president, and having its principal place of business at 310 South Tenth Street, Lemoyne, Cumberland County, Pennsylvania. Defendant is Scott W. Thumma, an adult individual residing at 509 Fifth Street, New Cumberland, Cumberland County, Pennsylvania. Plaintiff is in the business of selling commercial building products (e.g" windows, partitions and bathroom accessories) to contractors. The contractors, in turn, utilize the products in their construction projects. Plaintiffs sales to the contractors are generally on the basis of competitive bidding against other companies in the same business. ir ~, ~ . " 1 ',,."L, , ,', W'.' il- '.~ ',- -',,"',.;;..-'~ ".c. ~--r[;'~_i*. Prior to 1992, the Mason-Norton Company was a partnership comprised of George O. Preble and his father, Herbert N. Preble; it became a sole proprietorship, owned and operated by George O. Preble, in 1992, and an "S" corporation, owned and operated by him, in 1998. Defendant joined the company as a salesperson on October 11, 1984.1 Incident to his employment, he executed the following covenant not to compete: As a condition of my employment with Mason-Norton Company, I hereby agree that, if for any reason I must seek employment elsewhere, that for a period of 5 years following the termination of my employment with Mason-Norton Company, I will not work for any other company, individual or myself in competition with the Mason-Norton Company or Herbert N. Preble, throughout the Commonwealth of Pennsy1vania.2 Defendant left his employment with the company in 1988, and for about a year was employed as a seller of computer business forms. On September 20, 1989, he was rehired by the company. Again, incident to his employment he executed the following covenant not to compete: As a condition of my employment with Mason-Norton Company, I hereby agree that, if for any reason I must seek employment elsewhere, that for a period of 5 years following the termination of my employment with Mason-Norton Company, I will not work for any other company, individual or myself in competition with the Mason-Norton Company or Herbert N. Preble, throughout the Commonwealth of Pennsylvania. 3 On May 31, 2001, Defendant voluntarily resigned from his position with Plaintiff as sales manager following an argument with its president, George O. Preble. An attempt by Mr. Preble to reestablish contact with Defendant after the argument was unsuccessful. 1 Plaintiff's Exhibit I, Hearing, December 27, 2001 (hereinafter Plaintiff's Exhibit -,>. He was subsequently promoted to sales manager. 2 Plaintiff's Exhibit 2. 3 Plaintiff's Exhibit 4. 2 10'! --,,00.0- '" '. '.,,~ -, .., ~, ] __ J..._....: ""..... --"~",4;;',,~-: Since June 15, 2001, Defendant has been employed by a competitor of Plaintiff, Hostetter Supply Company, Inc., primarily as a sales person, at an armual salary of $55,000.00 plus a bonus. The principal place of business of Hostetter Supply Company, Inc., is in York, York County, Pennsylvania, about 15 miles in distance from Plaintiffs principal place of business. The geographic area in which Plaintiff does business is primarily Pennsylvania and secondarily Maryland, New Jersey, New York, West Virginia and Delaware. The geographic area in which Defendant's present employer primarily does business is central Pennsylvania. According to testimony of Plaintiffs president, the average duration of Plaintiffs static relationship with contractors is five years. Plaintiff currently has sixteen employees, of whom only one is in sales. Its gross annual revenues total about $5,000,000.00. However, the net revenues of the company are modest.4 During his employment with Plaintiff, Defendant acquired special knowledge about Plaintiffs pricing structures and profit margins. The business in which Plaintiff and Defendant's present employer engage IS highly specialized and highly competitive. The evidence supported the proposition that the restrictive covenant sub judice was appropriate to Plaintiffs reasonable business needs in terms of proscribed activity and geographic area, although the temporal extent of the restriction was, in the court's view, somewhat excessive. In the latter respect, however, the evidence more than supported the proposition that a period of at least a year was reasonable. DISCUSSION Statement of law. Several principles of law are of importance in the present context. First, with respect to preliminary injunctions, the standard has been stated as follows: 4 According to Plaintiff's president, "[ s ]ometimes the state makes more money in sales tax than we do." 3 .. . ' ,-I _'-""" '[ ~ , ," - ~ ~~ ~~'-' ;;4"".;;..iit~:; Three criteria have been established for the granting of a preliminary injunction.... They are: (1) the preliminary i~unction must be necessary to prevent immediate and irreparable harm which could not be compensated for by damages; (2) greater injury would result from the denial of the preliminary injunction than from the granting of it; and (3) it would operate to restore the parties to the status quo as it existed prior to the alleged wrongful conduct. In addition to meeting all three criteria, the court must be convinced that [plaintiffs] right to a preliminary injunction is clear. . . and general equity jurisdiction must be warranted. Comm. of Seventy v. Albert, 33 Pa. Commw. 44, 49, 381 A.2d 188,190 (1977). The "purpose [of a preliminary injunction] is to preserve the status quo. . . by restoring the last peaceable, noncontested status which preceded the controversy." Soja v. Factoryville Sportsmen's Club, 361 Pa. Super. 473, 477, 522 A.2d 1129, 1131 (1987). Second, where a preliminary injunction is issued, it must, as a general rule, be subject to the plaintiffs filing of [a] bond in an amount fixed and with security approved by the court, naming the Commonwealth as obligee, conditioned that if the injunction is dissolved because improperly granted. . . , the plaintiff shall pay to any person injured all damages sutained by reason of granting the injunction and all legally taxable costs and fees, or [subject to the plaintiffs deposit] . . . with the prothonotary [of] legal tender of the United States in an amount fixed by the court to be held by the prothonotary upon the same condition as provided for the injunction bond. Pa. R.C.P. 1531(b). Third, with respect to covenants not to compete, it has been noted by Judge Hess of this Court that [c]ourts of equity will enforce... covenants [not to compete] . . . when they are (1) incident to an employment relationship between the employer and employee; (2) reasonably necessary for the protection of the employer; and (3) reasonably limited in duration and geographic extent. Sidco Paper Co. v. Aaron, 465 Pa. 586, 591, 351 A.2d 250, 4 ~ 1,,1 -"'> , " -"--,' -.-"'-'" L~~"",*,'h 257 (1976). When restrictive covenants meet this three-prong test, they are prima facie enforceable. Bettinger v. Carl Berke Associates, Inc., et at., 455 Pa. 100, 103, 314 A.2d 296, 298 (1974). Wood Co. v. Hickey, 40 Cumberland LJ. 511, 514 (1990) (preliminary injunction issued); see Pennsel Communication Servs., Inc. v. DiCosimo, No. 01-2643 Civil Term (C.P. Cumberland July 9, 2001) (preliminary injunction issued); Computer Res. Assocs., Inc. v. Musselman, No. 93-0008 Equity Term (C.P. Cumberland March 16, 1993) (preliminary i~unction issued). As a general rule, a covenant not to compete incident to employment will survive a change in form of the employer's business entity from sole proprietorship to "s" corporation. See Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 164, 114 A.2d 672,673-74 (1955); Howe v. Anderson, 23 Pa. D. & C.3d 297,301 (C.P. Adams 1982) Where unreasonableness of a covenant not to compete is an issue, the burden is upon the party asserting such unreasonableness to demonstrate it. John G. Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 12, 369 A.2d 1164, 1169 (1977) (issuance of preliminary injunction affirmed). Furthermore, an assessment of irreparable harm in the context of breach of a covenant not to compete is to be made with an understanding that "[i]t is not the initial breach of [the] covenant which necessarily establishes the existence of irreparable harm but rather the threat of the unbridled continuation of the violation and the resultant incalculable damage to the former employer's business." Id. at 7, 369 A.2d at 1167. "General covenants are reasonably limited if they are 'within such territory and during such time as may be reasonably necessary for the protection of the employer. . . without imposing undue hardship on the employee.'" Jacobson & Co., Inc. v. Int'l Env't Corp., 427 Pa., 439,452,235 A.2d 612,620 (1967) (quoting Restatement of Contracts S516(f) (1932)). "What limits as to activity, geographical area, and time are appropriate in a particular case depends upon all 5 {{t ,-, I, .: I. - . j- ~- I~ , L'- , ..:. ,'ih;ili;litEi.,;,,-,: the circumstances." Restatement (Second) of Contracts S188, cmt. d (1981). The reasonableness of the temporal and geographic aspects of a restrictive covenant must be determined in light of the nature of the employer's interest to be protected. N Am. Publ. Co. v. Bishop, 15 Phila. 448, 455 (1987) (citing Boldt Mach. & Tools, Inc. v. Wallace, 469 Pa. 504, 366 A2d 902 (1976)). With regard to the geographic aspect of a covenant not to compete, "[t]he principle of customer-contact protection finds its expression in the general rule that the territorial restraint in a covenant not to compete will, generally speaking, be considered reasonable if the area covered by the restraint is limited to the territory in which the employee was able, during the term of his employment, to establish contact with his employer's customers." C.T. Dreschsler, Annotation, Enforceability of Restrictive Covenant, Ancillary to Employment Contract, As Affected by Territorial Extent of Restriction, 43 AL.R.2d 94, 162 (1955). In appropriate circumstances, a covenant encompassing the area of an entire country may be upheld. See, e.g., Plunkett Chem. Co. v. Reeve, 373 Pa. 513, 95 A.2d 925 (1953) (upholding covenant encompassing the United States). "[W]hen fashioning an injunction to enforce a restrictive covenant, trial courts have broad powers to modify the restrictions imposed on the former employee to include only those restrictions reasonably necessary to protect the employer." All-Pak, Inc. v. Johnston, 694 A2d 347,350-51 (1997). Application of law to facts. In the present case, it appears clear that the covenant not to compete entered into was intended to encompass the activity being pursued by Defendant at his new employment. The covenant was incident to Defendant's employment relationship with Plaintiff, and has been shown for present purposes, at least to the extent provided for hereafter, reasonably necessary for protection of the employer. It further appears that the harm occasioned to Plaintiff by this breach and the threat of a continuation of the covenant's violation is immediate and irreparable as those terms are understood in this area of the law. A refusal to issue 6 lt1 .-- . I. --,- -j'hliW"""'-"'--i " a preliminary injunction would appear to carry more risk of harm than issuance of the injunction. Finally, issuance of a preliminary injunction in the present circumstances would operate to restore the parties to the status as it existed prior to the alleged wrongful conduct. For the foregoing reasons, the following preliminary injunction will be issued: PRELIMINARY INJUNCTION AND NOW, this 11th day of January, 2002, upon consideration of Plaintiffs motion for a preliminary injunction, following a hearing held on December 27, 2001, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Pending further order of court, Defendant is enjoined from continuing his present employment with Hostetter Supply Company, Inc., in violation of the covenant not to compete sub judice, for a period of one year from the effective date of this preliminary injunction. 2. This preliminary injunction shall become effective upon the posting of a bond or cash in the amount of $55,000.00, in accordance with Pennsylvania Rule of Civil Procedure 1531(b). 3. In the event the requisite bond or cash is not posted or deposited within 20 days of the date of this order, the order shall be deemed automatically dissolved. BY THE COURT, sf J. Weslev Oler. Jr. J. Wesley Oler, Jr., 1. John W. Purcell, Jr., Esq. 1719 North Front Street Harrisburg, PA 17102 Attorney for Plaintiff 7 ~, , . Stephen S. Makowski, Esq. 3110 East Market Street Suite E York,PA 17402-2512 Attorney for Defendant . . - 'J-'-' , "--~ '-~ .: JJlsi. 8 {", 1!i~""'_'!!"'-h,,~" .fY ::jl:"'k^">".l',-'~';,~- C;tni:ir~Jjjli"9Iii~_~~.W.M.\tMW":"ili;;-I)!ffi''''1~;J-*j&#_~~iiIi~ilIIU;~il ~~ .,,- , "~__, v, ",,'"I,,"R~,I_.0,,"~."" ,r-, ,~;."c, <l'_, ~'!X,~',".~c ,'--"",c .,<,,,~~ '" .-,,~, ~ ~ ,"" ,~~ "-liIKr , ',-,' "P . ~,,' ,~_~,d ~,,_.,. _,~ -, < rs f3II ~~ ~ " <- _ '- J -_ i_ I_~ "" .' . "",","'-_4'""el"")",<,~,\,,. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA MASON-NORTON COMPANY, INC, NO, 01-6500 EQUITY TERM vii, CIVIL ACTION-IN EQUITY SCOTT W, THUMMA DECREE AND NOW, this 27th day of December, 2001, after careful consideration of the parties' position, and having heard testimony thereon, it is hereby DECREED that Plaintiffs request for Temporary Injunctive Relief is Denied" By the Court: Wesley Oler, J. "<' '~-.r:;'-'--' ~,~ ~. -."" ~ _.1. "~J~"", ~-"'"" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. v. NO. 01-6500 EQUITY TERM CIVIL ACTION-IN EQUITY SCOTTW, THUMMA DEFENDANT'S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S REQUEST FOR RELIEF UNDER P A. R.C,P. 1531 AND NOW, THIS 27th day of December, 2001, comes Defendant, Scott W. Thumma, through legal counsel, Timothy A. Baker, Esquire, Baker Law Firm LLC, and files this Memorandum of Law in Opposition to Plaintiffs Request for Relief under Pa. R.C.P. 1531, stating in support thereof as follows: 1. STATEMENT OF FACTS Defendant incorporates by reference the proposed Findings of Fact attached hereto and incorporated herein by reference as Exhibit "A," II. STANDARDS FOR ISSUANCE OF A PRELIMINARY INJUNCTION The standards for issuance of an injunction are indeed well established and difficult to satisfY, A preliminary injunction is an extraordinary, interim remedy to be -~"- ,< ~ ~ ~ ~ I Ib_~l_"""." '" ";~~~i- granted only upon clear right to relief in order to preserve the status quo pending resolution of the case on the merits. Cappiello v. Duca, 672 A.2d 1373 (pa. Super. 1996). A court may grant a preliminary injunction only where the moving party establishes the following elements: · Relief is necessary to prevent irreparable harm to the movant; · The injunction will restore the parties to the status quo as it existed before the alleged wrongful act; · Greater injury would result from a refusal to grant the injunction than from granting the injunction, and; . The movant's right to relief is clear. Everett v. Harron, 110 A.2d 383 (Pa. 1955). Moreover, a party moving for a preliminary injunction must demonstrate the following prerequisites: that the relief is necessary to thwart immediate and irreparable harm which could not be remedied by damages; that greater injury will result by refusing injunction than by granting it; that injunction will restore the parties to their status as existing prior to the alleged wrongful conduct; and that injunction is reasonably suited to abate such activity. See Lewis v. City of Harrisburg, 631 A.2d 807 (Pa. Super. 1993). A, PLAINTIFF CANNOT ESTABLISH IRREPARABLE INJURY Irreparable injury may be found where damages may only be estimated by conjecture, and not by any pecuniary. standard. Moreover, where a loss is ascertainable and compensable by monetary damages, irreparable harm is generally not found to exist. Sovereign Bank v. Hamer, 674 A.2d 1085 (Pa. Super. 1996). In the present case, Plaintiff is attempting to prohibit Mr. Thumma from earning a living rather than abating any irreparable harm, or harm at all.. Any potential harm of which Plaintiff may complain, if actual, may be ascertainable and quantifiable. Upon performing such quantification, Plaintiff could avail itselfto an adequate remedy at law. ~-,,-.'" ~~~~ ," ~~ I,~ ,i ~~ " I '-LI(I i>'-"O>",,~~..!1;:k;, Given the nature of Plaintiff s business, it is not at all evident that any harm may be found to exist. The general conduct of the building supply runs as follows: Suppliers receive requests for quotations or otherwise submit quotes, or bids, on supplying various items. The contractor generally accepts by sending a purchase order, which the supplier then fills. While Plaintiff alleges that Mr. Thumma is attempting to "affect existing business ofthe Plaintiff," even if true, (I) affecting business is no basis upon which to find irreparable harm and (2) the manner in which business could be affected are tenuous at best, because of the way business is conducted in the construction supply trade. B. THE IRREPAlUBLE HARM OF WHICH PLAINTIFF COMPLAJ[NS IS NOT IMMINENT One ofthe other requirements for granting a preliminary injunction is that inunediate harm will otherwise result. Plaintiffs Motion for Temporary Injunctive Relief as well as its Complaint are wholly devoid of any allegation of inunediate harm. Since Plaintiff has failed to allege, and it is submitted, shall be unable to demonstrate any harm whatever by reason of Mr. Thumma's current employment, a fortiori the element of inunediacy may not be shown. C, THE STATUS QUO SHALL WOULD BE ALTERED RATHER THAN PRESERVED BY GRANTING PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION A court may issue a pre1in1inary injunction for the purpose of preserving the status quo ante. The status quo presently is that Mr. Thumma is gainfully employed ,J;;',""'~" - "'""""~. , -, L ~~-.J.~"_ ~"~-" _.1-._ ~'"-. roi!.l by Hostetter Supply Co., Inc. Rather than preserving the status quo, granting Plaintiffs request for temporary injunctive relief would have the effect of disturbing it, in addition to depriving Mr. Thumma of his livelihood. D. PLAINTIFF'S RIGHT TO RELIEF IN THIS CASE IS FAR FROM CLEAR. The averments contained in Plaintiffs complaint, particularly in ~~ 16-21 are so vague as to vitiate any suggestion of a clear right to relief. As to the substantive prerequisites of enforcement, restrictive covenants have been held to be valid in Permsy1vania so long as they satisfy three (3) requirements: 1. the covenant must relate either to a contract for the sale of good will or other subject property or a contract of employment; 11. the covenant must be supported by adequate consideration; and 111. the application ofthe covenant must be reasonably limited in both tinJe and territory (i.e., duration and scope). See. e.g., Piercing Pagoda. Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976). If a restrictive covenant is viewed by the Court to be unconscionable, it is within the Court's discretion not to enforce it. Reading Aviation Service. Inc. v. Bertolet, 454 Pa. 488, 311 A.2d 628 (1973). In the present case, enforcement of the restrictive covenant would be unconscionable. Not only is unduly onerous as to scope and duration (5 years and the -"'~a~ ~ ~ ~ ....l. ~ 1,- ~'~h ~';rilll!l.~A;),..ti;:.!"..,." entire Commonwealth of Pennsylvania), but it is overbroad. In particular, the covenant excludes anv work with any company whose operations may be seen to compete with the business of Plaintiff. Thus, by its terms, Mr. Thumma would be excluded from perfonning any tasks, however remote and unrelated they are from his former responsibilities with Plaintiff. Depriving Mr. Thumma of his livelihood based on such a covenant, it is respectfully submitted, would not constitute the exercise of equity. Mr. Thumma believes the covenant furthermore fails for want of adequate consideration. While a restrictive covenant in an employment context need not be part of the original contract between the parties, such a restriction may be applied subsequently if it is supported by new consideration, either in the fonn of an initial employment contract or a change in conditions of employment. Maintenance Specialties. Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974). In the present case, the terms of the purported restriction are unconscionable and overbroad. The duration ofthe 1989 agreement sought to be enforced is five (5) years from the date of termination of employment. The geographic scope covers the entire Commonwealth of Pennsylvania. Given the character of the covenant sought to be enforced, Plaintiff is not likely to prevail on the merits at trial. Accordingly, injunctive relief is not appropriate. Furthermore, the adequacy of consideration of the covenant is in serious doubt. Plaintiffs Exhibit "A" contains a purported agreement dated September 20, 1989, signed by Mr. Thumma. As of that date, Mr. Thummapurportedly contracted with Mason Norton Company, a general partnership. One of the partners, Herbert Preble withdrew, and the partnership became a sole proprietorship. Subsequently, George Preble, son of ~'""""- :., - "~ 1__" , m.lil;i;,i;il:~t,"&'gf;"<' Herbert Preble and principal of Plaintiff herein incorporated his proprietorship. No assignment or notice of assignment ofthe agreement was ever provided to Mr. Thumma. Indeed, on information and belief, none exists. In sum, the company with which Mr. Thumma purportedly contracted has long since ceased operations. Plaintiff is another entity to whom Mr. Thumma owes no contractual obligations. WHEREFORE, Defendant, Scott W. Thumma, respectfully requests that your Honorable Court enter an Order denying and dismissing Dated: December 27, 2001 BAKER LAW FIRM LLC G.~ S> BY~~ Timothy A. Baker, Esquire Supreme Court No. 72744 3110 East Market Street, Suite E York, PA 17402-2512 (717) 600-2900 ~~ ;-. " 1- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO. 01-6500 EQUITY TERM vi, CIVIL ACTION-IN EQUITY SCOTT W. THUMMA CERTIFICATE OF SERVICE I hereby certify that on the 27th day of December 2001, I served a copy of the foregoing Memorandum of Law in Support of Injunctive Relief by hand delivery on the following: John W. Purcell, Jr. 1719 North Front Street Harrisburg, P A 17102 Stephen S. Makowski, Esquire ....." < ;~"~""~"'''''''-~ "...."""", ~" . ~ '" ,,,;:; :j I:., ,I ~:ii>j,,~: "'< ~~~"",,,,,,.!;,,=,,,>_';\_o; IN THE COlJRTOEC(;)MMON PLEAS CUMBERLANll COUNTY, PENNSYL VANIA MASON-NORTON COMPANY, INC, NO. 01-6500 EQUITY TERM v. CIVIL ACTION-IN EQUITY SCOTT W, THUMMA DEFENDANT'S p,ROrpSEDFlNDINGS OF FACT AND CONCLJUSlONS OF LAW AND NOW, THIS 27th day of December, 2001, comes Defendant, Scott W. Thumma, through legal counsel, Timothy A. Baker, Esquire, Baker Law Firm LLC, and files within Proposed Findings of Fact and Cqnc1usions of Law: I, Proposed Findings of Fact 1. Plaintiff signed a purported restrictive covenant with an entity known as Mason-Norton Company, a general partnership, on September 20, 1989. 2. The partnership of Mason-Norton Company, consisted of Herbert Preble and George Preble, father and son. 3. Some time in the 1990s Herbert Preble retired from Mason-Norton Company, and transferred his partnership interest to George Preble. 4. Mason-Norton thereafter became a sole proprietorship run by George Preble. Exhibit "A" "'~ ,~. ~,""~.. _L _ ,_ ,10____ "-'U~"fut!"",,,!,;~:, - .,- 5. Some tinJe in the late 1990s George Preble incorporated his proprietorship as Mason-Norton Company, Inc., a Pennsylvania subchapter S corporation. 6. No written assigmnent of contracts exists between Mason-Norton Company, the proprietorship, and Plaintiff. 7. Defendant was employed by Mason-Norton Company when it existed as a partnership. 8. Defendant not receive any additional or new consideration for continuing employment when the proprietorship was incorporated. 9. Herbert Preble drafted the covenant now sought to be enforced. 10. Herbert Preble did not intend for the covenant to be enforceable, but rather to serve as a strong deterrent to having set up business in competition with the partnership. 11. Defendant is currently employed by Hostetter Supply Co, Inc. ("Hostetter Supply"), having its principal place of business in York, Pennsylvania. 12. Both Plaintiff and Hostetter Supply submit bids in the ordinary course of their business on contracts for the supply of construction items. 13. The bids submitted are principally functions of cost and desired profit margm. 14. Given the nature of the building supply business, the employment of Mr. Thumma by Hostetter Supply does not cause irreparable harm to Plaintiff. 2 -"~"jp"I,,,,,--",-~ ~~ = -~"'-- ~- - , L. "',~ ~~~ "~C ~"""~-'ll>,,,;",,,,,.,,,k,l#~,..-.'_ II. Proposed Conclusions of law I. No valid and binding restrictive covenant exists between the parties. 2. No valid and binding assignment of contracts was entered into between Mason-Norton Company, Inc. and Defendant. 3. Plaintiff has failed to demonstrate irreparable injury, which is immediate. 4. The status quo would be altered by granting Plaintiff's requested relief. 5. The covenant sought to be enforced is not reasonably restricted in scope or duration. 6. The covenant sought to be enforced is unconscionable. 7. The covenant sought to be enforced is overbroad. 8. Defendant did not breach any contract(s) between himself and Plaintiff. Respectfully submitted: BAKER LAW FIRM LLC Dated: December 27, 2001 By:~j Timothy A. Baker, Esquire Supreme Court No. 72744 3110 East Market Street, Suite E York,PA 17402-2512 (717) 600-2900 J 3 " ,~ ~= ~-="'l~~~ -~. ,-[ . .- ,,:11-- =~, ~ ~""",~,,,,,,:,,,,~,,,,,,",,,,~,,, . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO. 01-6500 EQUITY TERM vi, CIVIL ACTION-IN EQUITY SCOTT W. THUMMA CERTIFICATE OF SERVICE I hereby certify that on the 27th day of December 2001, I served a copy of the foregoing Memorandum of Law in Support of Injunctive Relief by hand delivery on the following: John W. Purcell, Jr. 1719 North Front Street Harrisburg, P A 17102 P"""""" ,--.- - - - <. 1-. -- "~~ ,,'~,~." J ';i,;&rr"...,~~~ll.~' , -,I."", ~,:.._,~ .. , JEt:2C'~6py IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA MASON-NORTON COMPANY, INC. NO, 01-6500 EQUITY TERM v. CIVIL ACTION-IN EQUITY SCOTT W. THUMMA DEFENDANT'S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S REOUEST FOR RELIEF UNDER P A. R.C,P. 1531 AND NOW, THIS 27th day of December, 2001, comes Defendant, Scott W. Thumma, through legal counsel, Timothy A. Baker, Esquire, Baker Law Firm LLC, and files this Memorandum of Law in Opposition to Plaintiff s Request for Relief under Pa. R.C.P. 1531, stating in support thereof as follows: 1. STATEMENT OF FACTS Defendant incorporates by reference the proposed Findings of Fact attached hereto and incorporated herein by reference as Exhibit "A." II. STANDARDS FOR ISSUANCE OF A PRELIMINARY INJUNCTION The standards for issuance of an injunction are indeed well established and difficult to satisfY. A preliminary injunction is an extraordinary, interim remedy to be g;~ _";''''l<'~'~''''''~'.',W__ granted only upon clear right to relief in order to preserve the status quo pending resolution of the case on the merits. Cappiello v. Duca, 672 A.2d 1373 (Pa, Super. 1996). A court may grant a preliminary injunction only where the moving party establishes the following elements: . Relief is necessary to prevent irreparable hann to the movant; . The injunction will restore the parties to the status quo as it existed before the alleged wrongful act; . Greater injury would result from a refusal to grant the injunction than from granting the injunction, and; . The movant's right to relief is clear. Everett v. Harron, 110 A.2d 383 (Fa. 1955). Moreover, a party moving for a preliminary injunction must demonstrate the following prerequisites: that the relief is necessary to thwart immediate and iITeparable harm which could not be remedied by damages; that greater injury will result by refusing injunction than by granting it; that injunction will restore the parties to their status as existing prior to the alleged wrongful conduct; and that injunction is reasonably suited to abate such activity. See Lewis v. City of Harrisburg, 631 A.2d 807 (Pa. Super. 1993). A. PLAINTIFF CANNOT ESTABLISH IRREPARABLE INJURY Irreparable injury may be found where damages may only be estimated by conjecture, and not by any pecuniary standard. Moreover, where a loss is ascertainable and compensable by monetary damages, irreparable hann is generally not found to exist. Sovereign Bank v. Harper, 674 A.2d 1085 (Fa. Super. 1996). In the present case, Plaintiff is attempting to prohibit Mr. Thumma from earning a living rather than abating any irreparable hann, or hann at all.. Any potential hann of which Plaintiff may complain, if actual, may be ascertainable and quantifiable. Upon performing such quantification, Plaintiff could avail itself to an adequate remedy at law. ;v ,"""'" , ~'-, ~. . , ',I ~~'" ff' "" - ] " ~ I.......ili -li!<~j\t"-..~ ''''''''''''''''''';:I%"';-H~''~''b-''!< Given the nature of Plaintiff s business, it is not at all evident that any harm may be found to exist. The general conduct of the building supply runs as follows: Suppliers receive requests for quotations or otherwise submit quotes, or bids, on supplying various items. The contractor generally accepts by sending a purchase order, which the supplier then fills. While Plaintiff alleges that Mr. Thununa is attempting to "affect existing business of the Plaintiff," even if true, (I) affecting business is no basis upon which to find irreparable harm and (2) the marmer in which business could be affected are tenuous at best, because of the way business is conducted in the construction supply trade. B, THE IRREPARABLE HARM OF WHICH PLAINTIFF COMPLAINS IS NOT IMMINENT One of the other requirements for granting a preliminary injunction is that inunediate harm will otherwise result. Plaintiffs Motion for Temporary Injunctive Relief as well as its Complaint are wholly devoid of any allegation of inunediate harm. Since P1aintiffhas failed to allege, and it is submitted, shall be unable to demonstrate any harm whatever by reason of Mr. Thumma's current employment, a fortiori the element of inunediacy may not be shown. C. THE STATUS QUO SHALL WOULD BE ALTERED RATHER THAN PRESERVED BY GRANTING PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION A court may issue a preliminary injunction for the purpose of preserving the status quo ante. The status quo presently is that Mr. Thumma is gainfully employed -'~~ ~~, , ,~ < ~ ' .",. .-~ ~ ~-i\"'-,^'";"",:;,'t~,;",,;;-,,,- by Hostetter Supply Co., Inc. Rather than preserving the status quo, granting Plaintiffs request for temporary injunctive relief would have the effect of disturbing it, in addition to depriving Mr. Thmnma of his livelihood. D. PLAINTIFF'S RIGHT TO RELIEF IN THIS CASE IS FAR FROM CLEAR. The averments contained in Plaintiff s complaint, particularly in '1]'1]16-21 are so vague as to vitiate any suggestion of a clear right to relief. As to the substantive prerequisites of enforcement, restrictive covenants have been held to be valid in Pennsylvania so long as they satisfy three (3) requirements: 1. the covenant must relate either to a contract for the sale of good will or other subject property or a contract of employment; 11. the covenant must be supported by adequate consideration; and 111. the application of the covenant must be reasonably limited in both time and territory (i.e., duration and scope). See. e.g., Piercing Pagoda. Inc. v. Hoffuer. 465 Pa. 500,351 A.2d 207 (1976). If a restrictive covenant is viewed by the Court to be unconscionable, it is within the Court's discretion not to enforce it. Reading Aviation Service. Inc. v. Bertolet, 454 Pa. 488, 311 A.2d 628 (1973). In the present case, enforcement of the restrictive covenant would be unconscionable. Not only is unduly onerous as to scope and duration (5 years and the .""""-,, . ~ > - ~ -"' ,1<" I.... ." ~.....~_.'" .''''-;'-oH''-'''''",;''""T" entire Commonwealth of Pennsylvania), but it is overbroad. In particular, the covenant excludes anv work with any company whose operations may be seen to compete with the business of Plaintiff. Thus, by its terms, Mr. Thumma would be excluded from performing any tasks, however remote and unrelated they are from his former responsibilities with Plaintiff. Depriving Mr. Thumma of his livelihood based on such a covenant, it is respectfully submitted, would not constitute the exercise of equity. Mr. Thumma believes the covenant furthermore fails for want of adequate consideration. While a restrictive covenant in an employment context need not be part of the original contract between the parties, such a restriction may be applied subsequently if it is supported by new consideration, either in the form of an initial employment contract or a change in conditions of employment. Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974). In the present case, the terms of the purported restriction are unconscionable and overbroad. The duration of the 1989 agreement sought to be enforced is five (5) years from the date oftennination of employment. The geographic scope covers the entire Commonwealth of Pennsylvania. Given the character of the covenant sought to be enforced, Plaintiff is not likely to prevail on the merits at trial. Accordingly, injunctive relief is not appropriate. Furthermore, the adequacy of consideration of the covenant is in serious doubt. Plaintiffs Exhibit "A" contains a purported agreement dated September 20, 1989, signed by Mr. Thumma. As of that date, Mr. Thumma purportedly contracted with Mason Norton Company, a general partnership. One of the partners, Herbert Preble withdrew, and the partnership became a sole proprietorship. Subsequently, George Preble, son of "~ ",. ,I' l' -~','. i -;.;-< , lmIilillJ~~ ""- h" ';02~,i,.",,,,,,,,-'-l~~'- Herbert Preble and principal of Plaintiff herein incorporated his proprietorship. No assignment or notice of assignment of the agreement was ever provided to Mr. Thumma. Indeed, on information and belief, none exists. In sum, the company with which Mr. Thumma purportedly contracted has long since ceased operations. Plaintiff is another entity to whom Mr. Thumma owes no contractual obligations. WHEREFORE, Defendant, Scott W. Thumma, respectfully requests that your Honorable Court enter an Order denying and dismissing Dated: December 27, 2001 BAKER LAW FIRM LLC ~.~ 5> By\\ ~ Timothy A. Baker, Esquire Supreme Court No. 72744 3110 East Market Street, Suite E York,PA 17402-2512 (717) 600-2900 ," 1-0- ,.."I ,-.-- "'"""''''~'''''' '"' lIit,~ r -_.~ " 4W<~,;,..""oM'-~,,_ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. vi. NO. 01-6500 EQUITY TERM SCOTT W. THUMMA CIVIL ACTION-IN EQUITY CERTIFICATE OF SERVICE I hereby certifY that on the 27th day of December 2001, I served a copy ofthe foregoing Memorandum of Law in Support of Injunctive Relief by hand delivery on the following: John W. Purcell, Jr. 1719 North Front Street Harrisburg, P A 17102 Stephen S. Makowski, Esquire -~ .~ ,. ~. '"- ;)., '-'';:''.'-'''~-- f -iku-t< ".""";1;:--";_0",-"_",.,0,<',',, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA MASON-NORTON COMPANY, INC, NO. 01-6500 EQUITY TERM v. CIVIL ACTION-IN EQUITY SCOTT W. THUMMA DEFENDANT'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND NOW, THIS 27th day of December, 2001, comes Defendant, Scott W. Thumma, through legal counsel, Timothy A. Baker, Esquire, Baker Law Firm LLC, and files within Proposed Findings of Fact and Conclusions of Law: I. Proposed Findings of Fact I. Plaintiff signed a purported restrictive covenant with an entity known as Mason-Norton Company, a general partnership, on September 20, 1989. 2. The partnership of Mason-Norton Company, consisted of Herbert Preble and George Preble, father and son. 3. Some time in the 1990s Herbert Preble retired from Mason-Norton Company, and transferred his partnership interest to George Preble. 4. Mason-Norton thereafter became a sole proprietorship run by George Preble. Exhibit "A" , ~ '".~~~" '.~ J '<>:.,'1 I~~,,~ ~ ~1!""",..I#-:';!mg"'!.'-1;''''',. S. Some time in the late 1990s George Preble incorporated his proprietorship as Mason-Norton Company, Inc., a Pennsylvania subchapter S corporation. 6. No written assignment of contracts exists between Mason-Norton Company, the proprietorship, and Plaintiff. 7. Defendant was employed by Mason-Norton Company when it existed as a partnership. 8. Defendant not receive any additional or new consideration for continuing employment when the proprietorship was incorporated. 9. Herbert Preble drafted the covenant now sought to be enforced. 10. Herbert Preble did not intend for the covenant to be enforceable, but rather to serve as a strong deterrent to having set up business in competition with the partnership. II. Defendant is currently employed by Hostetter Supply Co, Inc. ("Hostetter Supply"), having its principal place of business in York, Pennsylvania. 12. Both Plaintiff and Hostetter Supply submit bids in the ordinary course of their business on contracts for the supply of construction items. 13. The bids submitted are principally functions of cost and desired profit margm. 14. Given the nature of the building supply business, the employment of Mr. ThUlllilla by Hostetter Supply does not cause irreparable harm to Plaintiff. 2 ~- 1 c' , , 1:-"", ,',:, "0 II. Proposed Conclusions oflaw I. No valid and binding restrictive covenant exists between the parties. 2. No valid and binding assignment of contracts was entered into between Mason-Norton Company, Inc. and Defendant. 3. Plaintiff has failed to demonstrate irreparable injury, which is immediate. 4. The status quo would be altered by granting Plaintiffs requested relief. 5. The covenant sought to be enforced is not reasonably restricted in scope or duration. 6. The covenant sought to be enforced is unconscionable. 7. The covenant sought to be enforced is overbroad. 8. Defendant did not breach any contract(s) between himself and Plaintiff. Respectfully submitted: Dated: December 27, 2001 BAKER LAW FIRM LLC BY:~) Timothy A. Baker, Esquire Supreme Court No. 72744 3110 East Market Street, Suite E York,PA 17402-2512 (717) 600-2900 J1 3 , '........;,_~"..,,,l). -- c ',' ~--I........~ , -'"-" """'-~-"il -''''~O!;, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. vi, NO. 01-6500 EQUITY TERM CIVIL ACTION-IN EQUITY SCOTT W, THUMMA CERTIFICATE OF SERVICE I hereby certify that on the 27th day of December 200 I, I served a copy of the foregoing Memorandum of Law in Support of Injunctive Relief by hand delivery on the following: John W, Purcell, Jr. 1719 North Front Street Harrisburg, P A 17102 ~"Iik ,--~~.. ~ 1 -, ~~'.-'-'-'~ - ~~> ,~JU>tliil1llit'. '~i ......., ~__w~_~...j;",;;,I"I,""~~~,,~.,;,~,.-<,Co'''-', = .l ,. ~".-" ~ , . To: Plaintiff, Mason-Norton Company, Inc. You are hereby notified to fIle a written response to the enclosed NEW MATTER within twenty (20) days from service hereof or a jndgment may be entered against yon. ~~~,~ Timothy A er, Esqnire IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. v. NO. 01-6500 EQUITY TERM CIVIL ACTION-IN EQUITY SCOTT W. THUMMA ANSWER AND NOW, comes the Defendant, Scott W. Thumma, by and through his attorneys, Baker Law Finn, LLC, and answers Plaintiff's Complaint and avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. The allegations contained in this Paragraph are denied in that Plaintiff, Mason-Norton Company, Inc. has only been in existence since December 16,1998. By way of further answer, Defendant is not aware of the amount of time and money spent by Plaintiff with regard to customer relationships, therefore, the same are denied and strict proof is demanded at trial. 6. Admitted. '1 ~-'"- ,~ ~ ' J, , .I"",,,,,, . '~'~~>J("md;'~':',""-';;"" \ , 7. Admitted. 8. Denied. Plaintiff specifically denies that any employment contracts were assumed by Plaintiff upon incorporation and, therefore, the allegations are denied and strict proof is demanded at trial. 9. Admitted in part, Denied in part. The allegations contained in this Paragraph are Admitted insofar as the Defendant began working for Mason-Norton Company, on or about October II, 1984. The remaining allegations are Denied in that any restrictive covenant, if same should exist and being a document, would speak for itself and should have properly been attached to the Complaint. 10. Admitted. II. Admitted in part, Denied in part. The allegations contained in this Paragraph are Admitted insofar as Defendant was re-employed by the Mason-Norton Company. The remaining allegations are denied in that any restrictive covenant, being a document, speaks for itself. 12. Denied. Defendant was re-hired by Mason-Norton Company, a partnership, and not Plaintiff Mason-Norton Company, Inc. 13. Admitted. 14. Admitted. 15. Admitted. 16. Denied. The allegations contained in this Paragraph are denied in that the Plaintiff and Hostetter Supply Company compete based upon a low price basis. --~ -~"- ." 1..~,_~If,.,~li<U!I4~""_-""-__~"_~"",,_-,,<, """ . . 17. Denied. The allegations contaIned in this Paragraph are conclusions oflaw which require no response, therefore, the same are denied. . Insofar as a response may be deemed required, Defendant specifically denies each and every allegation contained in this Paragraph and specific proof is demanded at trial. 18. Denied. The allegations contained in this Paragraph are conclusions oflaw which require no response, therefore, the same are denied. 19. Denied. The allegations contained in this Paragraph are conclusions oflaw which require no response, therefore, the same are denied. Insofar as a response may be deemed required, Defendant specifically denies each and every allegation contained in this Paragraph and specific proof is demanded at trial. 20. Denied. The allegations contained in this Paragraph are conclusions oflaw which require no response, therefore, the same are denied. 21. Denied. The allegations contained in this Paragraph are conclusions of law which require no response, therefore, the same are denied. WHEREFORE, Defendant, Scott W. Thumma, respectfully requests that this Honorable Court dismiss Plaintiffs Complaint in its entirety and award to Defendant any other relief which this Court believes appropriate. NEW MATTER 22. Plaintiffs Complaint fails to state a claim for which relief may be granted. 23. Plaintiff s Claim is barred by the applicable statute oflirnitations. ""'--~ ..~" > ~~~ ",'- ~_~"""""'~"r"'"",i$ll"~",o.;.",.._""'l!.ilirilo;Jlj;~c,"'""~",~"_,_"",,,,,,";~, -" . 24. Plaintiff believes and therefore avers that any restrictive covenant signed by the Defendant, if any should exist, is overly broad in scope, location and tinJe and is, therefore, unenforceable. 25. Any covenant, if any should exist, is not a contract and/or is unenforceable as a matter oflaw. WHEREFORE, Defendant, Scott W. Thumma, respectfully requests that this Honorable Court dismiss Plaintiff s Complaint in its entirety and award to Defendant any other relief which this Court deems appropriate. Respectfully submitted, BAKER LAW FIRM, LLC - -~^~=_~ l. ~/_ Ti~~hy- A.l\aker, Esq ire Identification No. 72744 3110 East Market Street Suite E York,PA 17402 (717) 600-2900 Attorney for Defendant -""~""""- . '. .~. ~ ~-- ", I,,,,;, i ~~ ~ . -...J_~_"""'_"-;""~_~;l).dkJ4,,",'MO~'__ , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. v. NO. 01-6500 EQUITY TERM CIVIL ACTION-IN EQUITY SCOTT W. THUMMA VERIFICATION I, Scott W. Thumma, Defendant in the above-captioned matter, verity that the facts contained in the foregoing document are true and correct to the best of my knowledge and belief. I understand that false statements may be subject to penalties under 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. ~ Scott W. Thununa ~_"_'ftol\I_ -- > t.-" _;.' "'.'_c !iiliiill>l!_i!",,,~,~.,,~'$.-,,,,,,;j,,,,,~,~'J;"j,_,.,~i,_ ',", . IN THE COORT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. v. NO. 01-6500 EQUITY TERM CIVIL ACTION-IN EQUITY SCOTT W, THUMMA Certificate of Service I, Timothy A. Baker, Esquire, of Baker Law FirmLLC, 3110 East Market Street, Ste. E, York, PA 17402-2512 do hereby certify that the date set forth below, I served the following individual(s) the foregoing Pleading, by placing the same in the United States mail, postage prepaid to: John W. Purcell, Jr. PURCELL, KRUG & HALLER 1719 North Front Street Harrisburg, PA 17102 Attorney for Plaintiff ~___>-"" ~'\R...L.___,,_.. Timothy A. B'aker, Esquire ' 3110 East Market Street Suite E York, PA 17402 717-600-2900 Attorney for Plaintiff Dated: \'2.-\ II \ 0\ _liil:iiir:.,~[il- "i~~~~yt~l1t~Ji~,;;thio1!i~1ti'.:",:-Kt-,~"",,:,.,.. ;',h,,~'I',,;"-"i;,~{:., '-"'~"'__o:C!(..A?Jl~e!M~!<lli&..4~l!&M;;;i,;\,1OOl';\l'k1~i"'-4.1;.i1H6J~ili1!>ru:&~.if~(\iliiml~,v ..- . o ~$?Q ~ ('I fd. ..., CWy (\ ., "0 -r '5 '7D ~~ , . U1 ~ ".=_'" "_""'-' ,'_, . ~~_. ."..,,~ ,,,,0,;,"", ~,,~,_ ,c_'" - , ~_~~,,~,C'~ -." ",,,~,_......, "il!l.iEI(;lllf"~ o ~... "I}f j'j':j ;=:- t~ ~~,(') ~;~ > ~;~ ;::;; -=j -, ItIi:;i:-", r C:~~ '-) --'1 ~ ; '''-j ..:'-) c...) ~'0 ---:_'I~,l " -" ~~:J -~~ C) __-__--:,;-1', ."-l -I> ':D -< r:? :11 10 Es (3If . ~ ~ -.." ,-',' "IJ;:;"" .-',-^" -" ''It'.~-'~-'w.-'<~~~ , MASON-NORTON COMPANY, INC. Plaintiff Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01 - lPS'C>() r~u..\~ y~ : CIVIL ACTION-IN EQUITY l VS. SCOTT W. THUMMA, NOTICE You ha.ve 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 have been served. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, 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 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted de be presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previa aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE ABOGAD 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIDA A8AJO PARA AVERIGUAR DONDE SE PUEDE CONSEGl)IR ASSISTENCIA LEGAL: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 -,~~- """"""'" ~ ~~'-~ , ,-- .I~--'M " , b'" 'ii1 -<~ j~!flill~~)" . MASON-NORTON COMPANY, INC" : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA Plaintiff vs. : NO. 01- &,$'00 ~~iJ '-r~ :CIVIL ACTION-IN EQUITY SCOTT W. THUMMA, Defendant COMPLAINT AND NOW, comes the Plaintiff Mason-Norton Company, Inc. by and through its attorneys, Purcell, Krug & Haller, and makes the following Complaint and in support thereof avers the following: 1. The Plaintiff is Mason-Norton Company, Inc. , a Pennsylvania corporation organized and e~sting under the laws of the Commonwealth of Pennsylvania, with an address of 310 South Tenth Street, Lemoyne, Cumberland County, Pennsylvania 17043. 2. The Defendant Scott W. Thumma is an adult individual with a current address of 509 Fifth Street, New Cumberland, Cumberland County, Pennsylvania 17070. 3. Mason-Norton Company, Inc. is a company which provides among other services, a brokerage of speciality constmction products in the commercial constmction industry. ..--, "'. ': "''''''---~t-'- ''''(" .,,,,1 'J_;il~il:N\:\i, 4. Mason-Norton Company, Inc. conducts business throughout the state of Pennsylvania, and into the states adjoining or surrounding Pennsylvania. 5. Mason-Norton Company, Inc. has spent many years and invested a substantial amount of money and time in marketing to build a positive relationship with potential customers in the geographical location in which it conducts business. 6. The Defendant is a former employee of Mason-Norton Company, Inc. 7. The Defendant was originally hired by the predecessor of Plaintiff, the Mason-Norton Company, which at the time of his employment, was a partnership consisting of Herbert N. Preble and George O. Preble. 8. Subsequent to the Defendant's employment, the partnership was merged into the present corporation, and all employment contracts were assumed by the Plaintiff corporation, including the employment contract between the parties. 9. The Defendant was originally employed on or about October 11, 1984. At that time, the Defendant executed a Restrictive Covenant Agreeement, agreeing that as a condition of his employment, upon termination of his employment with Plaintiff, for a period of five years, he would not work for any other company, individual or himself in competition with Mason-Norton Company. 2 " .l. lil,~,;ii<o1',Gi.L'l',i 10. Thereafter, Defendant did terminate his employment and left the employ of Mason-Norton Company for a short period of time. 11. On or about September 20, 1989, the Defendant was re-employed, and at that time, executed another Restrictive Covenant Agreement containing the same terms referenced above. A copy of that Agreement is attached hereto and made a part hereof as Exhibit" A" . 12. At the time the Defendant was re-hired by Plaintiff, he was aware that he would be required to sign the Restrictive Covenant Agreement as a condition of his re-employment, and agreed to do so. 13. On or about May 31,2001, the Defendant terminated his employment with the Plaintiff for a second time. 14. Thereafter, Plaintiff believes and therefore avers that the Defendant took a position with Hostetter Supply Company, Inc., 1880 West Mason Avenue, York, York County, Pennsylvania 17405. 15. Hostetter Supply Company, Inc., is a business which is, in whole or in part, in competition with the Plaintiffs business. 3 ~-" ~ 0"_ ""1iEli' ~" -, -:c... RliG:",,g1'\S'4;':?;;",,-'_~ . 16. Upon information and belief, Plaintiff believes and therefore avers that the Defendant is using knowledge, skills and training received while employed by the Plaintiff, in an effort to take away business from the Plaintiff for the benefit of his present employer. 17. The Defendant's employment with a competitor, and his direct actions in attempting to solicit business away from the Plaintiff for the benefit of his new employer, business which is exclusive only to the Plaintiff, is continuing and unless enjoined by this Court will result in irreparable harm, injury and damage to the Plaintiff for which Plaintiff has no adequate remedy at law. 18. The Agreement of the parties as embodied in the Restrictive Covenant attached is an enforceable Agreement between the Plaintiff and Defendant and is reasonably limited in duration of time and geographic area, or can be by the Court. 19. The Defendant breached the contract with Plaintiff by: A. Taking employment with a competitor of Plaintiff within five years from the date of termination of his employment with Plaintiff; 4 G . ~" ._""~ 1 ok, ,~ ;&;~',j.._""":,,,, B. Using his knowledge and information obtained from his employment with Plaintiff for the purpose of soliciting clients and business away from Plaintiff for the benefit of his current employer. 20. Defendant is in breach of his Agreement with Plaintiff, and has irreparably harmed, and continues to cause irreparable harm to, Plaintiff. 21. Only a Decree of Specific Performance would adequately protect the interest of Plaintiff and provide Plaintiff with the benefits for which it is entitled under the parties' Agreements. WHEREFORE, Plaintiff, Mason-Norton Company, Inc. requests this Honorable Court to: 1. Schedule a Hearing on the Plaintiff's Complaint, and; 2. After Hearing, Order speCific performance of the Restrictive Covenant Agreement of the parties; and 3. Prohibit the Defendant from continuing his employment with any competitor of the Plaintiff, including his present employer, Hostetter Supply Company, Inc., and himself; and 5 - .-, --I ,--~, ~_ 4. Provides such other relief as the Court shall find appropriate and just. Respectfully submitted, PURCELL, KRUG & HALLER BY J cell, Jr. .D #29955 19 North Front Street Harrisburg, PA 17102 (717) 234-4178 6 ........n_.. ~ - '" ~ li<~~~'""",,""""'.H'~' " M'~ '......~~ . --~ =. L~ ~!r-;~~'.j;~-, MASON - NORTON COMPANY HERBERT N. PREBLE. PIlESIP1!lN'l' 310 S. TENTH ST.. LEMOYNE. PA. 17043 PHONE 717-737.4568 TOILET PARTITIONS OFFiCe: PAfHITIONS META.L. WINDOWS ORNAMENTAL IofETAL WORK As a condition of my employment with Mason-Norton Company, I hereby FIRE DOORS agree that, if for any reason I must seek employment elsewhere, that LOUVERS for a period of 5 years following the termination of my employment PL.AQUES AND LETTERS with Mason-Norton Company, I will not work for any other company, FIRE EXTINGUISHERS individual or myself in competition with the Mason-Norton Company or CHAJ,.KBOARD AND TRIM Herbert N. Preble, throughout the Commonwealth of Pennsylvania. SKYLIGHTS VAULT DOORS DATE: L' NAME: ~~. r:~. . "........., (. / ~l.'L/,"......- _ ,/L.: c,';.-v\>~rl-'---f\.. ADDRESS: ,;;2col t.jEtiJn...!01<.T;;'~/~i.= CAr>1pHni f] 1)0 II PASS WINDOWS X.RAY l;lROTECTlVE MATERIAI-8 LINEN CHUTES WIRE.MESH !PARTITIONS AND WINDOW GUARDS CURTAIN CUBICLES ROLLING STEEL DOORS TELEPHONE BOOTHS BATHLIFTS HOLLOW METAL AND KAL.AN EI N DOORS AND FRAM.ES LOCKERS AND SHELVING Exhibit "A" ~- - ,-- , 'villi......."""'"""" "~"' IiISlI~iiltl!l6iIB5.iliiJiiil!i.lm11.1'flli~",'li"o\,'li'1,o!"!, VERIFICATION COMPANY NAME: MASON-NORTON COMPANY I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. S 4904 relating to unsworn falsification to authorities. Dated: rJtl/l. 8, Z =1 Title . :PJm3IDllNT ~:~'-;'~W::d.it~~~~~~M-ib\r';;lW!k'P-J:h~liiJj~i-j!;-,i4,.-itYw.c0'~'J"i&!~~_~1'Hf'-~V-- ,ili!1liitBi!ill>"'."'~M'" ~ ~ I! =~'a''''''~n''~''' ".,." _ ,: ''2'-_^,-L''-C"_",, '"'"',+"',",<t;',,,,~_,,,,,,,~"_,,,, C<~'~,- _', ,,~~ 7V ~ II ~ <v () ...... -....l ~ ~ -.J ~ ~ 1 CI) ~ 0 ~ 0 ~ j q' OJ jtv.'J JIf ~ - ,,' , ' ",--"",," -''''''''--,~-''''", ", ~- ,-' (") 0 0 ~ C -n s: % -0 OJ c::> +t~ lilf~-' <.11:::: z::x::; "-TI~'il :Z:[- ",.-'.,', (j) 1.0. c..n 'n"___ .-(Z_ ~;~(i) ;<CJ -a ' ,"""j; i2: (--. :Jt: '-.,>i:~ ~2 '-:;) :"')tt1 ~~ -7 ~ ~ =< ~ \0 -< 'H_. _ 1 L -'"~l'-L>-~~ '~ - ~:~,",)~~~':n' ,. DEG 1 8 2001 jJ-' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO, 01-6500 EQUITY TERM v, CIVIL ACTION-IN EQUITY SCOTT W. THUMMA ORDER AND NOW, This day of ,2001, Upon consideration of Plaintiffs Motion for Temporary Injunctive Relief and Defendant's Response thereto, itis hereby ORDERED and DECREED that Plaintiffs Motion is DENIED. BY THE COURT: J, ~"i,f ~.bo>""",,'""~~ ' ~ , ' ,-~ - I. ~~il#.l,w,IiG"W~',:~_, , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO. 01-6500 EQUITY TERM v. CIVIL ACTION-IN EQUITY SCOTT W. THUMMA DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR TEMPORARY INJUNCTIVE RELIEF 1. Admitted. 2. Admitted in part, Denied in part. The allegations contained in this Paragraph are admitted insofar as the Plaintiff has filed a Complaint requesting the alleged relief. The allegations are denied insofar as any restrictive covenant exists and/or ifthe same should exist, that it is enforceable. 3. Denied. Defendant, Scott W. Thumma, specifically denies the allegations in that they are factually incorrect. 4. Denied. The allegations are denied in that Defendant believes and, therefore avers, that Plaintiff s Complaint is meritless and without basis in law and opposes any Order enjoining Defendant from earning a livelihood. =--""- ~~ -~ I , ~w~....."''''''' ~~' a""'~""'""'-' - ~);oj!J.,,",,,,,,,"',,,;t,_,,j,,e.' .. WHEREFORE, Defendant! Respondent respectfully requests that this Honorable Court deny Plaintiff s Motion and grant any other relief that the Court deems necessary and just. Respectfully submitted, BAKER LAW FIRM, LLC ~~""" Timothy A. Baker, Esquire Identification No. 72744 3110 East Market Street Suite E York, PA 17402 (717) 600-2900 ~_"'.!R " "0. ..... ~ _ ~ L~..;J ~~~ ,,< ~ tt-""\i~ l!l1iiil'~I..lilIiWI<l:,.,,,,,.v/r~~"'>-'k,i' ..' .; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO. 01-6500 EQUITY TERM v. CIVIL ACTION-IN EQUITY SCOTT W. THUMMA VERIFICATION I, Scott W. Thumma, Defendant in the above-captioned matter, verifY that the facts contained in the foregoing document are true and correct to the best of my knowledge and belief. I understand that false statements may be subject to penalties under 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. ~ Scott W. Thumma ~.....----"'--_.. " I"~l - 1_~.,~ ~c' ~ ~,,,,,,,,,,,,........._,Ii.flft" ,,"~l ~.'7 _-~'~"-""f"""'M."jb';., "" "' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC, v. NO. 01-6500 EQUITY TERM CIVIL ACTION-IN EQUITY SCOTT W. THUMMA Certificate of Service I, Timothy A. Baker, Esquire, of Baker Law Firm LLC, 3110 East Market Street, Ste. E, York, PA 17402-2512 do hereby certify that the date set forth below, I served the following individual(s) the foregoing Pleading, by placing the same in the United States mail, postage prepaid to: John W. Purcell, Jr. PURCELL, KRUG & HALLER 1719 North Front Street Harrisburg, P A 171 02 Attorney for Plaintiff Dated~~ "'-S~~~/~ Timothy A. Baker, Esquire 3110 East Market Street Suite E York,PA 17402 717-600-2900 Attorney for Plaintiff ,;r.jb;it~-jri'~~illifj'\s'i",':)." ~ ~~ :;::o~M';"~'T"i-!I",,~.~IIIiIDlIth~,_j,TI.;~"'~l:jjnlliif"'~""'<'."""""'"~e~~ ... .. o Q2 (> p V1~ -r- ,,::;;" -:3 --- pi.. F. ~ ^~"~ " .- -- ~ -u i:-~-: r'-i[ Z ~;:.:~ co 2~ "'~~.::c' :;~~ ~;~2 <.. ~, "":'") '--'I -:'-) .JR-" c_~} ..') l'.) :)1 f") ::"J -<. .'-, -~ -,""- I.M~~' -.......... ~- __,,';;'_,c,_', "'--"""tlii~~: DEe 1 8 2001l;l , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO. 01-6500 EQUITY TERM v. CIVIL ACTION-IN EQUITY SCOTT W. THUMMA ORDER AND NOW, This day of ,2001, Upon consideration of Plaintiffs Motion for Temporary Injunctive Relief and Defendant's Response thereto, it is hereby ORDERED and DECREED that Plaintiffs Motion is DENIED. BY THE COURT: J. ".'.> ,-" . 1 ....~ - 611..:.il!:l-"<i " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MASON-NORTON COMPANY, INC. NO. 01-6500 EQUITY TERM v, CIVIL ACTION-IN EQUITY SCOTT W. THUMMA ORDER AND NOW, This day of ,2001, Upon consideration of Plaintiffs Motion for Temporary Injunctive Relief and Defendant's Response thereto, it is hereby ORDERED and DECREED that Plaintiffs Motion is DENIED. BY THE COURT: ~-' '.'-.J,-J~~c! DEG 1 8 2001 .h-' f'i J. 'II; ~-""",-,,""~'" m """",""_""'LI " MASON-NORTON COMPANY, INC., Plaintiff vs. SCOTT W. THUMMA, Defendant " I ~~_~;~W",,,,,<;i,""b,,",_,,- : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : NO. 01 -(~,s0D 2cc~Jy 't~ :CIVIL ACTION-IN EQUITY ORDER OF COURT AND NOW, this Z. ~ fLday of ~ C>" (.......lo C' J ,2001, upon consideration of the foregoing Motion for Temporary Injunctive Relief, a hearing is scheduled for the 71ft day of ~P.AA 2001, at! ; 30 f!..M., in Courtroom No. ~, Cumberland County Courthouse, Carlisle, PA 17013. . ~ //:~~4:.RXS BY THE COURT, o -V i~ t [') ..., e'En,: _ ~~ t;? ~~ ;....I ~~~. +? ~ () 3? -~' ;.:::c:> .:s C :z Y:l ~ p O<J .-~'" " " " '. I -, ;-",J -,'- !~7j "-.1 .1:J :1': -,~C) c ~ c) ~:~~,nl j~ :0 -< "'0 CO !~-; ,I,'" -~.1.1lI~4-?'''-O'''_''c4'',;''''M' MASON-NORTON COMPANY, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTy, P A Plaintiff : NO. 0\ - 1&>$66 8c.-c.V,"J '-r~ :CIVIL ACTION-IN EQUITY vs. SCOTT W. THUMMA, Defendant MOTION FOR TEMPORARY INJUNCTIVE RELIEF 1. The Movant is Mason-Norton Company, the Plaintiff in the above captioned matter. 2. The Plaintiff has filed a Complaint requesting specific performance of the Restrictive Covenant Agreement between the parties, a copy of which is attached hereto and made a part hereof as Exhibit "A". 3. The Defendant has used his employment with a competitor to try to affect existing business of the Plaintiff, and continues to do so since taking on his new employment. 4. The Plaintiff requests the Court to schedule a hearing and thereafter to enter an Order temporarily enjoining the Defendant from continuing his employment with Hostetter Supply Company, Inc. until trial on the merits of the Plaintiff's Complaint. """,,'. ~ ~_I ~ ~ , ~I....... '~ bc~~-.:ij,,,,";__,H':,"",,_. WHEREFORE, the Movant requests this Honorable Court to schedule a hearing on the Plaintiff's Motion for Temporary Injunctive Relief. Respectfully submitted, PURCELL, KRUG & HALLER BY Jo W. Purcell, Jr. I. . #29955 19 North Front Street Harrisburg, PA 17102 (717) 234-4178 2 ii! ,-.."."'''''''......' ~..-~-"'" . ~ ~~~ - ,.1 ., ~. _J > , , "" -, I"..w~ ,_ ~=' -.., ~~ . ~:~;\I0I"W~~'C'" MASON-NORTON COMPANY, INC. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA VS. SCOTT W. THUMMA, :NO. Defendant : CIVIL ACTION-IN EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in the fonowing pages, you must take action within twenty (20) days after this oomp1aint and notice have been selVed. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, 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 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted de be presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona, Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previa aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE ABOGAD 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIDA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 EXHIBIT ..a ~ '",," J ~~ ,. ' "-~- ~,li( '"'...,~ MASON-NORTON COMPANY, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA Plaintiff vs. : NO. SCOTI' W. THUMMA, Defendant :CIVIL ACTION-IN EQUITY COMPLAINT AND NOW, comes the Plaintiff Mason-Norton Company, Inc. by and through its attorneys, Purcell, Krug & Haller, and makes the following Complaint and in support thereof avers the following: 1. The Plaintiff is Mason-Norton Company, Inc. , a Pennsylvania corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with an address of 310 South Tenth Street, Lemoyne, Cumberland County, Pennsylvania 17043. 2. The Defendant Scott W. Thumma is an adult individual with a current address of 509 Fifth Street, New Cumberland, Cumberland County, Pennsylvania 17070. 3. Mason-Norton Company, Inc. is a company which provides among other services, a brokerage of speciality construction products in the commercial construction industry. . ____1di"'''''- ~ ~ b. - "~ 1 ",I' L_,.. ~ 'rloii" Jillliii -- ~< ldil.d;,.:t~",,~j..,.._>;),....i 4. Mason-Norton Company, Inc. conducts business throughout the state of Pennsylvania, and into the states adjoining or surrounding Pennsylvania. 5. Mason-Norton Company, Inc. has spent many years and invested a substantial amount of money and time in marketing to build a positive relationship with potential customers in the geographical location in which it conducts business. 6. The Defendant is a former employee of Mason-Norton Company, Inc. 7. The Defendant was originally hired by the predecessor of Plaintiff, the Mason-Norton Company, which at the time of his employment, was a partnership consisting of Herbert N. Preble and George O. Preble. 8. Subsequent to the Defendant's employment, the partnership was merged into the present corporation, and all employment contracts were assumed by the Plaintiff corporation, including the employment contract between the parties. 9. The Defendant was originally employed on or about October 11, 1984. At that time, the Defendant executed a Restrictive Covenant Agreeement, agreeing that as a condition of his employment, upon termination of his employment with Plaintiff, for a period of five years, he would not'work for any other company, individual or himself in competition with Mason-Norton Company. 2 ""..~,,~ <-~ ~, ""~~ _l -'-- : . """"" ~ l~' '\i-'~\il."'" 10. Thereafter, Defendant did tenninate his employment and left the employ of Mason-Norton Company for a short period of time. 11. On or about September 20,1989, the Defendant was re-employed, and at that time, executed another Restrictive Covenant Agreement containing the same terms referenced above. A copy of that Agreement is attached hereto and made a part hereof as Exhibit "A". 12. At the time the Defendant was re-hired by Plaintiff, he was aware that he would be required to sign the Restrictive Covenant Agreement as a condition of his re-employment, and agreed to do so. 13. On or about May 31, 2001, the Defendant tenninated his employment with the Plaintiff for a second time. 14. Thereafter, Plaintiff believes and therefore avers that the Defendant took a position with Hostetter Supply Company, Inc., 1880 West Mason Avenue, York, York County, Pennsylvania 17405. 15. Hostetter Supply Company, Inc., is a business which is, in whole or in part, in competition with the Plaintiff's business. 3 """""""""'~~ --~- ~ '. ~ Jir"-'"l~ ~~~l ~""~Jd""",,,,,,0..", 16. Upon information and belief, Plaintiff believes and therefore avers that the Defendant is using knowledge, skills and training received while employed by the Plaintiff, in an effort to take away business from the Plaintiff for the benefit of his present employer. 17. The Defendant's employment with a competitor, and his direct actions in attempting to solicit business away from the Plaintiff for the benefit of his new employer, business which is exclusive only to the Plaintiff, is continuing and unless enjoined by this Court will result in irreparable harm, injury and damage to the Plaintiff for which Plaintiff has no adequate remedy at law. 18. The Agreement of the parties as embodied in the Restrictive Covenant attached is an enforceable Agreement between the Plaintiff and Defendant and is reasonably limited in duration of time and geographic area, or can be by the Court. 19. The Defendant breached the contract with Plaintiff by: A. Taking employment with a competitor of Plaintiff within five years from the date of termination of his employment with Plaintiff; 4 "~'""'''''', ~ 1 , =.;..... --",,' ',,'- ~!<;(;r""',")"';'WA,:,I"",~_;"', B. Using his knowledge and information obtained from his employment with Plaintiff for the purpose of soliciting clients and business away from Plaintiff for the benefit of his current employer. 20. Defendant is in breach of his Agreement with Plaintiff, and has irreparably harmed, and continues to cause irreparable harm to, Plaintiff. 21. Only a Decree of Specific Performance would adequately protect the interest of Plaintiff and provide Plaintiff with the benefits for which it is entitled under the parties' Agreements. WHEREFORE, Plaintiff, Mason-Norton Company, Inc. requests this Honorable Court to: 1. Schedule a Hearing on the Plaintiff's Complaint, and; 2. After Hearing, Order specific performance of the Restrictive Covenant Agreement of the parties; and 3. Prohibit the Defendant from continuing his employment with any competitor of the Plaintiff, including his present employer, Hostetter Supply Company, Inc., and himself; and 5 ~",,=..u""""''''''''l'"'' - . ,~ "' I, ' , "~1~"~1><ii~~_""~.n-"',"",,,_,,-"',,,,,",),, 4. Provides such other relief as the Court shall find appropriate and just. Respectfully submitted, PURCELL, KRUG & HALLER BY ,/~ ~C J cell, Jr. .D #29955 19 North Front Street Harrisburg, PA 17102 (717) 234-4178 6 -,,""""""" ._~= " . l. ~""-"~,' :illv"~tl\i~~.;b,,,,=~.'-'",'''''c! .' ' VERIFICATION COMPANY NAME: MASON-NORTON COMPANY I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. S 4904 relating to unsworn falsification to authorities. ~-- r '\ By ^/(nl. 8. :z. = I ., Dated: Title . ~ ne:S!Di:!N'J f -..,oii"?~,~ )~l'11";;'''8Iii~.IJ:_~i1-'n~m_~ilIs;"~1'{i0t~'SLlli';) \"H~-i:~;""",;;~n?€ffi.'il'i~if~kiillililli1iHt!lllW'~-"'-"'-'-- = -""'~,~~ U ~ ., ~~< ~" ~,~,,~~~ - ~~ ", "',~ """~".""'''',, ~i!iUi!i'~~ IIIIIIIV, 0 0 ,,_J C ~ < ~s. ;r: < j ""OeD (=' ;p m,," ~<C: ~~ r~ L_\<< -,'~ ;~-j U)~:::-_ (.)1 ~;-_:~,;> ~~- yC) '"" ~~ -i; :]-.= ZC ~O ~? )>c: .:;; ~ '~"1 'TI C::' =< ~, ~ ~. ~~'" ,I ", .J-" __0 .. "''';..~ ,- ,;, ',~'""":' MASON-NORTON COMPANY, INC. , Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 01-6500 EQUITY TERM SCOTT W. THUMMA, Defendant CIVIL ACTION - IN EQUITY IN RE: PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 27th day of December, 2001, upon consideration of Plaintiff's motion for temporary injunctive relief, and following a hearing, the record is declared closed, and the matter is taken under advisement. By the Court, J( , John W. Purcell, Jr., Esquire 1719 North Front Street Harrisburg, PA 17102-2392 For the Plaintiff Stephen S. Makowski, Esquire 3110 East Market Street Suite E York, PA 17402 "' ~~ c+-. j.. 0;2-0';""- :mae ~: .'-6dlI ~ , >.b'~ " ~ '", . ~,1~!J!!\I:'At.=" _J_~JI. ,,-" ' ^~ ~r'- C't ,,-) ",'nt'c IlXL-l..,J:r-]-\"JL,..,.. 'F OF T~'F F';::-Cf":- i()<'~}L~RY 02 JflN -.2 Pi'i 2: 02 CU~/IBE:filj.:\,D COUNTY PENNSYLv'I\NIA - ";ffllffi-l')r~;il,II'W,~,4 ',,'_' ~'_~ ;f~f~l!<!!,,,!\~l<i1!;1!;'J'Il?~I,,,. -_:- [~~II5ll!~_:~_ , 'd,:"J,,"~1i'! ---;o_~*p' . __"~J.f;~o",,l~~~ .' - -- '._,,-.,. "--",.. c-' , ,;.; [-, ., "'" ~,. -j, , ,_' -." ,- _ih"o"_'~ -, .', ^" >,;:-,,~-'~,~J;.' ":~~",;:~':'--':''-';~;':~i::--''~'-'-'o',-.:;; J ';';;:;';';{,{;:;"\';";"';"',-;;"',-; "d;.~:, :'--{ >--A ~' . . ... MASON-NORTON COMPANY, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 01-6500 Equity Term SCOTT W. THUMMA, CIVIL ACTION - EQUITY Defendant PRAECIPE TO THE PROTHONOTARY: Please enter the appearance of Delano M. Lantz, James P. DeAngelo and McNees Wallace & Nurick LLC on behalf of Defendant, Scott W. Thumma. By Delano M. Lantz I.D. No. 21401 James P. DeAngelo I.D. No. 62377 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: January 28, 2002 Attorneys for Defendant ~, . ~" -- - '0:: eke," ",-.- '''; ,-," ~,~ "-"e,..;i.,," ' ': - ;;':'_:_._ ,">' - _ ,;,-1:';::,',>1,.'"-,",,, '-~-_"'.'';''''',~_~J:''"',_',~;,,::--',.,,-,,. _,', .~~\i_'~;;, _:, . , CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a copy of the foregoing document was served by United States first-class mail, postage prepaid, upon the following: John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 Delano M. Lantz Date: January 28, 2002 " 'j~~}j:t-j'\~ ~-" j{i2llfill!t~~:~~~il:-"b';" ' -;.~-",;,r' l6\:rllllf - L -~J~~; -~- , ,",,> ,,', _.WA'..~',- ',_,_ ,:,,i~"'p;;';~~'("""';.J';. '<'-N'o. " ':$-~'<'-; '=~ "c," c ~:b.>,,, c___ ._. - ~-'. " ,'.'"' " -. 0 0 0 c:: h> il -~ t,_ I ~ uQ :~;)" T~. mrT! :-.f: j": -=~ 2:::1."' , - '" " ~~~ '.0 . ,Iy -'-.-;~l r<Cj -0 =-i~ -:~ ~C, _.l." ':-;: c=S -~C) N C) m Pc ,.-; :z: :::> 1S '-;1 ."'- ID -< F<.' <:- '-J f!J/ N! ""., -- -, .~--". '''_' _,_ .., '. . '.-.', d .__,d "~,,,"__ . ~ ''-_C_" ~ -: ,: :-;::I~,,:C""'-~ 0' ",."" '_~''-.i...'' :"~':'",,.;.;-;;-,S;,'<~~',,, ',,'-'-; '-,'!.1Ii.;:,-_&"i , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GEORGE P. PFALTZ, JR. Civil Action v. MARIE KOV ALICK No.: 00-6500 Civil Term 2000 PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned matter settled, ended and discontinued. WAGMAN KREIDER & WRIGHT BY: David A. Kreide, Plaintiff 222 E. Orange Street, P.O. Box 1522 Lancaster, PA 17608-1522 (717) 397-7000 S.Ct.ID. No.: 38022 " -"- " ,," ),' " ~" .'-" .,~, ,~, ~,;'-'I . , '. "',- ",",c~~,,:~:..~,;..,}.i;.;;;'\~';;:'~":"~'-"''-il~;' 'L ~~_ '" CERTIFICATE OP SERVICE I hereby certify that I have this day served a true and correct copy ofthe foregoing Praecipe upon the person set forth below and in the manner indicated: Pirst class mail, postage prepaid: Brigid Q. Alford, Esquire Boswell, Tintner, Piccola & Wickersham 315 North Pront Street P.O. Box 741 Harrisburg, PA 17108-0741 WAGMAN KREIDER & WRIGHT Date: ;fz(o 7- -----. / //~ By:jj avid A. Plaintiff 222 E. Orange Street, P.O. Box 1522 Lancaster, P A 17608-1522 (717) 397-7000 S.Ct.ID. No.: 38022 2 -!~~k;~I~rij~lllii!j~~-~~~:\.'<"<';i"':- '~~~lt4~W"~MTh_M~$&~~~~~~itit-~--:~ '-J 'H ~ ;~ ._., ,. _ .f'=--=>'~_d.=, ~ 'j 1il~!I{ 4;''''''':- '''''J'"",~",,,-,,,,;~~,~r,',,,,_ ~ . ,,-~~~~, -'=""'''''-, ., 0 0 c: f'-~ <- -rJ f~: ~ !;Fr'" :;;~ :-1..: Z~" "" W_ ': -< .~. ., ,) r-el - /-, <::: ~' :J>_ <C' , -- Zlj ::~;;. - - . 1___ j>U ~y '~'c:-C) C ~.._~' "I' L u :< ::;:) )j (Jl :n -< r.E:<::: 'a/I -,. "-~...' 'Ie';.' , -0-"-""-"-" ,,,-,' ",. ~,__ ~ "W.'~ &r'I'i!il!'~"; o o MASON-NORTON COMPANY, INC. , Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 01-6500 EQUITY TERM SCOTT W. THUMMA, Defendant CIVIL ACTION - IN EQUITY IN RE: PRELIMINARY INJUNCTION Proceedings held before the HONORABLE J. WESLEY OLER, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on December 27, 2001, in Courtroom Number One. APPEARANCES: John W. Purcell, Jr., Esquire For the Plaintiff stephen S. Makowski, Esquire For the Defendant ^~,1ilIiIlII .~> H :'"1'" .:::r_i .~riCFJTi'H,( [1" r) "'r~, " , "- r c.b -d A;\-j 8: f'"1"\ '.,<"; f'"'lrl,{'----,,-, ' vUJv'il~s:IiL;.:\u COUNTY PtNNSYLVI'-\J\ili\ e ',,", ' '~ ,-",<..'<""_,'-' .' >'''-',,"'J..-'''~ , '. 'C ~ '. .1 J:'l!",_""'~!lIl!! ~,~~_,~~~~~a\jiJ!~l'i!ij'---W;,*'i'l'V'M,'qf~~~~-~l"'l'iiifj.\i~1!I@i~~1'J"1'!';":1f o INDEX TO WITNESSES - -I.' ~ . '"~~>r"_' "",o_~"'~- o FOR THE PLAINTIFF DIRECT CROSS REDIRECT RECROSS George Preble 4 28 33 REBUTTAL George Preble 60 FOR THE DEFENDANT Scott W. Thumma 37 44 Herbert Preble 53 57 2 . '. . - oUI"- " ,- ~ b.~ ,-,-', ._"b.I%;,~~v c A... V INDEX TO EXHIBITS FOR THE PLAINTIFF MARKED ADMITTED Ex. No. 1 - W-4 form 7 37 Ex. No. 2 - noncompete agreement 7 37 Ex. No. 3 - 1989 W-4 form 10 37 Ex. No. 4 - 1989 noncompete agreement 10 37 Ex. No. 5 - letter 20 37 Ex. No. 6 - letter 23 37 Ex. NO. 7 - letter 25 37 Ex. No. B - order record 26 37 Ex. No. 9 - letter 47 59 3 ----'..,.,-" ~ -~ "_ ~ _ . Art;, ~I",....." , ~~""' , -"""-"~' ;r,~"H,>-n<t/-: " o 1 THE COURT: This is the time and place for 2 a hearing in the case of Mason Norton Company versus Thumma 3 at number 01-6500 Equity Term. The hearing is on a motion 4 for temporary injunctive relief filed on behalf of the 5 plaintiff. We will let the record indicate that a 6 representative of the plaintiff is in court, and that the 7 plaintiff is represented by John W. Purcell, Jr., Esquire. 8 The defendant is also present in court, and he is 9 represented by Stephen S. Makowski, Esquire. 10 Do counsel wish to make short opening 11 statements or do you want to proceed directly to the 12 evidence? 13 MR. PURCELL: Your Honor, I would be happy 14 to proceed directly into the evidence. 15 MR. MAKOWSKI: That's acceptable. 16 THE COURT: All right. Mr. Purcell. 17 MR. PURCELL: All right. I would like to 18 call my first, and actually my only witness right now, 19 which would be George Preble. 20 Whereupon, 21 GEORGE PREBLE 22 having been duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 BY MR. PURCELL: 25 Q Would you state your full name and your 4 ,.- ::; , ' ""-"1. " ~, . ~-.,="'"~ "r'",w",--",-i'''''''''~i,~' o o 1 address, your business address for the record, please? 2 A George O. Preble, 310 South Penn Street, 3 Lemoyne, Pennsylvania. That's my business address. 4 Q Okay. And that's the business address for 5 the plaintiff, Mason Norton Company, Inc.? 6 7 8 Norton Company? 9 10 11 12 13 corporation? 14 15 A Yes. Q Okay. What is your relationship to Mason A I'm the president and owner of the company. Are you a hundred percent stockholder? Q A Yes, sir. Q How long has the business been a A Since 1998. Q Okay. And prior to that date what kind of 16 entity was the business? 17 18 your pardon. 19 20 proprietorship? 21 22 23 entity was it? 24 25 A A partnership. Or sole proprietorship, beg Q Okay. And for how long was it a sole A Since 1992. Q Okay. And prior to 1992 what kind of A It was a partnership. And as a partnership who were the partners? Q 5 "'B 1 2 3 correct? 4 5 -'I. . ' ":--"-w- ~ ~ -~__,~<~~A'"c o 0..'.:.' .. A Herbert Preble and George Preble. Q Herbert Preble was your father; is that A Yes, sir. Q Okay. Now, has the business changed at all 6 between the time it was a partnership to the time it was a 7 sole proprietorship to the time it was a corporation? 8 9 A No, sir. Q The only thing that's changed is the entity, 10 the business itself continued? 11 12 13 14 A The business operates the same. Q Okay. The same employees? A Basically the same employees, yes. Q At the time that the business became a 15 corporation, did it assume all the rights and liabilities 16 of the previous entity? 17 A It assumed all the rights and liabilities of 18 the sole proprietorship. 19 Q Okay. And then it continued seamlessly to 20 conduct the same business as the corporate entity; is that 21 right? 22 23 A Yes, sir. Q And did that include the rights and 24 obligations concerning the employees of the business? 25 A Yes, sir. 6 --''''; '-~Id: _;;, "._' .a.; r~>1l1lo'_"'_""A-0;r;:: o . 1 Okay. Q Are you familiar with the defendant, 2 Scott Thumma? 3 4 5 6 7 8 9 A Yes, sir. Q All right. And was he an employee of Mason Norton Company? A Yes, sir. Q Can you give me first when he was first employed? Do you know? I believe that was 1984. A 10 Q Okay. Do you know the first day that he -- II his first day on the job, the first day he was hired? 12 13 14 A I think he started to work around October the 11th. (Whereupon, Plaintiff's Exhibits 1 and 2 15 were marked for identification.) 16 BY MR. PURCELL: 17 Q Prior to his first day at work on October 18 11th, 1984, did Mr. Thumma make an application for the job? 19 A Yes, sir. 20 Q Was that sometime prior to October 11th or 21 was that contemporaneous with his starting employment? 22 A That was on 9/25. 23 24 25 Q A Q So on September 25th of the same year? Yes, sir. Okay. And at the time that he applied for 7 Jvi 10 11 . 1".-, "".' ,,' "~""',M~";;,, -", o o 1 the job, did you have any discussions or was he told by the 2 company whether he was going to be required to sign a 3 noncompete agreement with the company? 4 5 Yes, sir. A Q Okay. So when he first came to work then 6 he had to fill out certain forms; is that correct? 7 8 That's correct. And one of those would have been the W-4 A Q 9 information for his employees withholding; is that correct? A Q Yes, sir. I'll show you what's been marked as 12 Plaintiff's Exhibit 1. Is that a copy of the form that he 13 filed on his -- or filled out on his first day of work? 14 A Yes, sir. It is a W-4 form. 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. May I ask a question? Is there any issue in the case as to whether the defendant was aware of the noncompete clause and whether it was incidental to his employment? MR. MAKOWSKI: Whether it was incidental perhaps. Whether he was aware, I don't believe is an issue. THE COURT: All right. I just thought we might be able to save a little time, but apparently it is an issue as to whether this clause was incidental to the employment. 8 4? ,~ I" ~',,~,-,. " c o 1 MR. PURCELL: Okay. I don't know that it 2 was pled that way, Your Honor, so I don't know that I agree 3 with that, but I'm simply trying to lay a little ground 4 work because the actual agreement that was signed is dated 5 after this, and this indicates if that is an issue, this 6 will help with that issue. 7 8 9 10 11 12 13 THE COURT: All right. MR. PURCELL: So we should probably clarify that. THE COURT: All right. BY MR. PURCELL: Q Let me show you what's been marked as Plaintiff's Exhibit 2. Is that a copy of a noncompete 14 agreement that Mr. Thumma signed? 15 A Yes, sir. 16 Q And when was that signed? 17 A October the 11th, 1984. 18 Q Okay. And that was signed the same day as 19 the W-4 form? 20 A Yes, sir. 21 Q And it was also his first day on the job? 22 A Yes, sir. 23 Q Now, subsequent to signing this and going to 24 work for you, but prior to 1989 -- this is 1984 we're 25 talking about. Prior to 1989 did he leave the company's 9 ~~ '--~~.\l; ~B 1 employ? 2 3 4 5 be, no. 6 7 8 9 _~.I _, -;..,oO-'''''''''~~~' 000 o o A Yes, sir. Q Okay. And do you know when? A I don't recall exactly when that date would Q Okay. Was he subsequently rehired though? A Yes, sir. Q And do you know when that was? A I believe the year was 1989. 10 (Whereupon, Plaintiff's Exhibit No.3 was 11 marked for identification.) 12 BY MR. PURCELL: 13 Q I'm going to show you what's been marked as 14 Plaintiff's Exhibit 3, which is a two page document. 15 Could you identify that for the Court, please? 16 A Yes, sir. Our Exhibit Number 3 is the 1989 17 W-4 form that was signed by Mr. Thumma on 9/20/89. 18 Q Okay. And I'll show you what's been marked 19 as Plaintiff's Exhibit 4. Would you identify that? 20 A Exhibit Number 4 is the agreement not to 21 compete, and that was also signed on 9/20/1989. 22 Q So when he came back to work for the company 23 in 1989, he was required to resign the covenant not to 24 compete, the noncompete agreement; is that right? 25 A Yes, sir. 10 ".')i 1 'C "1;,.-,:., ,~, ,~ ~-'iI;.;l~,;",",,~">>i o 0,' ---. Q And did he continue to work for the company 2 after September 20th, 1989? 3 4 5 6 sirens. 7 8 he? 9 A Yes, sir. Q Is he still working there now? A I didn't hear the question because of the Q I'm sorry. He's not working there now, is A Mr. Thumma is not employed by Mason Norton 10 Company now, that's correct. 11 12 13 14 Q Can you hear me okay? A I'll try. Q All right. THE COURT: I suppose I should explain we 15 were talking about the fire sirens outside the building so 16 the record isn't unclear as to what the discussion was. 17 18 BY MR. PURCELL: 19 MR. PURCELL: Yes. Q So he's not presently working there. When 20 did he leave the company's employ for the last time? 21 22 23 24 25 quit? A May the 31st of this year. Q Of 2001? A 2001. Q Okay. Was he fired or did he voluntarily 11 ~ 1-"- ~'~- - ~ _~:;'-"""t""'-"""'"'''''''' o o 1 A He voluntarily quit. 2 Q Okay. So he's not been employed by Mason 3 Norton Company, Inc., since May 31st, 2001, as a result of 4 quitting the job? 5 A That would be correct, sir. 6 Q All right. Now, before we go any further, 7 can you describe to the Court what kind of business Mason Norton Company is? A What kind of business does it do? We're a niche kind of a business that 8 9 Yes. 10 sells building products to the construction industry. We 11 are not like a Wal-Mart or a fast food chain where there's 12 many, many businesses like those. We have our niche, and 13 there are not many businesses like ours either in this 14 area, in the state, or even in the United States. It's a 15 very highly specialized business. 16 Q All right. What do you sell, and who do 17 you sell it to? Who are your customers generally? 18 A We sell commercial building products to the 19 commercial construction industry; aluminum windows, metal 20 partitions, bathroom accessories, chalk and tack boards, 21 all kinds of specialty items that you would find primarily 22 in schools, churches, office buildings. 23 24 Q Okay. THE COURT: We gather that you do not 25 manufacture these? 12 ~ ,- I.-~-'~....; '.~iIl u - ,r.<iJ,'1!I!i.;'''''i-),!.'I,. 1/1II+...' \iiI o 1 THE WITNESS: Sir, we do no manufacturing. 2 We do a little manufacturing of visual display boards. 3 THE COURT: But basically you're selling 4 other people's products to contractors for use in the 5 buildings the contractors are building? 6 THE WITNESS: Yes, sir, that would be 7 correct. 8 THE COURT: Okay. 9 BY MR. PURCELL: 10 Q And effectively you're brokering between the 11 manufacturer and the ultimate user of these goods; is that 12 correct? 13 A We're a manufacturer's representative. In 14 many cases we represent the manufacturers on an exclusive 15 basis. 16 Q Okay. So you have exclusive contracts with 17 some manufacturers? 18 A Yes, we do. 19 Q Okay. Do you get much or does much of 20 your business come through the process of competitive 21 bidding? 22 A Yes. We generally quote the general 23 contractors who are bidding the project. We're a material 24 supplier to the general contractor. 25 Q All right. Now, are you familiar with 13 %;: 1 ' ~---- e o 1 Hostetter Supply Company? 2 A Would you repeat that, Mr. Purcell? 3 Q Are you familiar with the Hostetter Supply 4 Company? 5 6 7 8 9 10 A Q A Q A Q Yes, sir. Where are they located? I believe they're located in York. And what kind of business are they in? In the same type of business that we're in. They actually supply materials to 11 contractors on a competitive bidding basis similar to what 12 you've just described? 13 14 15 16 17 18 19 20 21 A Q Yes, sir. All right. Would you consider them a competitor of yours? A I would consider them a competitor of Mason Norton Company, yes. Q Do you find yourself on a regular basis competing for the same jobs? A Yes, sir. Q Okay. 22 BY THE COURT: 23 24 25 Q For the record, you're located in Lemoyne, Pennsylvania, in Cumberland County; is that right? A Yes, sir. 14 ---" ~~- 1U'flo~~~,,: "~ 1 2 that correct? 3 4 -,'. , ,Iu' , " ~:!;o-.~,i e 0., "~,_I Q And Hostetter is located in York County; is A Yes, sir. Q And what is the distance approximately 5 between the two businesses? 6 7 8 BY MR. PURCELL: 9 A My guess would be 15 miles. THE COURT: Okay. Mr. Purcell. Q Okay. The type of business you do, and the 10 geographical location that you do your business, where 11 would that be? 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Basically the State of Pennsylvania and surrounding states. Q Maryland? A Q A Q A Q A Q A Q Adjoining states of Pennsylvania. Do you also do business in the State of Yes, sir. How about New Jersey? A little in New Jersey. How about New York? A little in the lower part of New York. West Virginia? West Virginia. Ohio? No, I wouldn't say too much in Ohio. Okay. So it's primarily in Pennsylvania 15 ,\-?- , 0, _ I~'~' .', , -, .t\k'1~'~~'>.';;: o o 1 with a little bit in West Virginia and Maryland, and 2 perhaps a little bit in New Jersey and New York; is that 3 correct? 4 5 6 7 A Q A Q Delaware also. And Delaware also? Yes, sir. Okay. The type of jobs that you do much of 8 your work for involve government contracts? 9 10 11 12 A Q A Q Government contracts. Schools, public buildings, things like that? Yes, sir. Okay. And they are located all throughout 13 the entire state, and in those other states we mentioned; 14 is that right? 15 A That would be correct. 16 Q Okay. 17 THE COURT: I'm sorry to interrupt, but as 18 I indicated to counsel, I have to be out of the courthouse 19 for about 10 minutes and then I'll return. So if it's 20 convenient we'll take a 10 minute recess and then we'll 21 resume. 22 MR. PURCELL: All right. 23 (Whereupon, a recess was taken at 1:57 p.m.) 24 AFTER RECESS 25 (Whereupon, George Preble resumed the 16 ~;;: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J I~ ..... ~ ~"'- il ~~-,~~--"- o o 1 stand.) 2 THE COURT: Mr. Preble, you are still under 3 oath. Mr. Purcell. 4 DIRECT EXAMINATION (cont'd.) 5 BY MR. PURCELL: Q Okay. Mr. Preble, we were discussing your business and Mr. Thumma. When Mr. Thumma worked for Mason Norton Company what was his position? A He was hired as a salesman. Q Okay. Did he continue as a salesman throughout the term of his employment? A He was subsequently elevated to sales manager of the company. Q Okay. So when he quit in 19 -- in this past May, was his position at that time as sales manager? A Yes, sir. Q Okay. And in his position of -- well, first of all, what were his responsibilities as salesman and sales manager? A His responsibilities were to sell to the general contractors. Q Okay. In his position as salesman and sales manager, did he learn information about the business, and specific to the business, your business, that would be helpful to any of his competitors -- to your competitors? 17 ," 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --'~-- ".~.,..;,'- "1" '~'1:jji~;;" o . 1 A Yes, he would definitely have information as 2 far as the pricing structures are concerned and our profit 3 margins. 4 5 Q A Okay. Anything else? He would also have knowledge of people -- of 6 exclusive manufacturers and other manufacturers that we 7 deal with. Q Okay. If he was working for a competitor, could he use that information to outbid you on jobs in which you were mutually bidding on? MR. MAKOWSKI: Objection. THE COURT: On what ground? MR. MAKOWSKI: On the ground that it asks if he could use it. It's not a well-defined question. THE COURT: I'm sorry. I can't hear you. MR. MAKOWSKI: I'm going to object to the form of the question. THE COURT: The form of the question. What was wrong with the form? MR. MAKOWSKI: It's asking for an opinion. THE COURT: An opinion. Okay. Mr. Purcell. Do you have a response to that? MR. PURCELL: Well, I don't think it's asking for an opinion. I'm asking him if he knows whether the information that he learned from working could be used 18 10 11 12 13 14 15 16 17 -- ~ " '-",'J";;. ,.~-, " ~"",,,,,.,1;".>,,,,,,,-'l., e o 1 2 3 to affect the bidding process. That's a statement of fact. That's not an opinion. THE COURT: The objection is noted, but 4 overruled. 5 BY MR. PURCELL: 6 7 Q A Okay. You can answer the question. Yes. He would be aware of -- he would be 8 aware of our pricing structure and our percentages of 9 profit. Q Okay. And how would that be used to affect -- let's take a concrete example. Say you were -- Mason Norton was bidding on a particular job that Hostetter was also bidding on. How would the information he have be used to outbid you on that job? MR. MAKOWSKI: Objection. This is conjecture, Your Honor. THE COURT: All right. The objection is 18 noted, but overruled. 19 20 MR. PURCELL: THE WITNESS: You can answer it. All right. There are some 21 instances where we would buy from the same manufacturers. 22 So if we bought from the same manufacturer that they bought 23 from or they bought from the same manufacturer we bought 24 from, and he's aware of what our pricing structure is, 25 obviously he could underquote us. 19 i';! ~.~~ 1 BY MR. PURCELL: 2 -, '~, _--L 'lriIIi" ~~ ""~"""";i~IiL~:; o o Q Okay. Now, as a broker of specialty 3 building supplies do you have any exclusive sales contracts 4 with manufacturers that you use to bid on the jobs? 5 6 A Yes. Q Okay. Is Winco Windows -- that's w-i-n-c-o 7 Windows one of those? 8 9 A Yes, sir. Q Have you recently become aware of a 10 situation where Mr. Thumma and his employer, Hostetter 11 Supply, attempted to circumvent your exclusive contractual 12 arrangement with Winco? 13 14 15 16 A Yes, I am. Q I'll show you what's been marked as Plaintiff's Exhibit Number 5. Could you identify that? A Yes. This is a document that was written on 17 Hostetter Supply Company letterhead to the winco Window 18 Company to the attention of Jack Hornsey and Lee Headrick. 19 The letter is 20 21 Q A How did you obtain this letter? I received a copy of this letter from Mr. 22 Hornsey at Winco Window Company. . 23 Q And that's the company that you have the 24 exclusive contract with; is that right? 25 A Yes. Urn-hum. 20 'f; 10 11 12 13 14 15 16 17 18 19 20 21 22 .- ~,"',,~LiIItiii;[ ~~ "~-. V 11" ""''l.,.~'H"",-ia''t'",,i'_ c o 1 2 3 4 5 6 7 8 Q And you are their representative in Pennsylvania; is that correct -- actually the greater area of Pennsylvania? A Well, not entirely all Pennsylvania. Q Okay. Just in the general area that we cover. A Q that letter All right. Now, on the second paragraph of now that letter appears to have been written 9 by Mr. Thumma; is that correct? A Yes. Q And actually it's not actually signed with a signature, but the end of the letter says Scott W. Thumma, sales/service; is that right? A Yes, it does. Q And that's a letter from Hostetter to Winco from Mr. Thumma, and on the second paragraph he -- and I'll read the sentence to you. It says both have steered away from Winco due to it's lack of service and hands on approach from it's current rep. Now when he's referring to the current rep, who is he referring to? A Q Mason Norton Company. Essentially he's telling Winco that they're 23 current rep, Mason Norton Company, is guilty of a lack of 24 service and a hands on approach? 25 A Yes, sir. 21 -<~ 1 ""I.~,-~,," ~~""~'-"~'~"~"-' e .- '" Q What's the thrust of this letter? What is 2 he trying to get from Winco in this letter? 3 A I would say he's trying to get from Winco an 4 opportunity to buy Winco Windows or outbuying them from 5 Mason Norton Company. 6 Q Okay. He's trying to circumvent the 7 exclusive selling contract that you have? 8 9 10 Winco? 11 12 A Yes, sir. Q The representative contract you have with A Yes, sir. Q In the course of your dealings in the 13 business, in the building -- specialty building supply 14 business, have you had any feedback from suppliers or other 15 contractors, that type of thing, concerning Mr. Thumma's 16 employment? 17 18 A Yes. Q And generally what have they -- what kind of 19 feedback have you gotten? 20 A Very negative about Mason Norton Company, 21 and me personally. 22 23 24 25 Q And specifically what's been said to you? MR. MAKOWSKI: Objection. THE COURT: On what ground? MR. MAKOWSKI: Hearsay. 22 t.j ~.. '. ~ . 0 ~ I....~~ ~ - .c-.; ~ L~~lI1-A!,' c e 1 THE COURT: Mr. Purcell. 2 MR. PURCELL: Your Honor, I'm not trying to 3 -- I don't think it's classic hearsay. I don't think it's 4 hearsay at all. We're not offering any out-of-court 5 statements for the purpose or proving the truth of the 6 statement itself. We're offering the out-of-court 7 statements for the purpose of proving that Mr. Thumma is 8 malining the business, and saying negative things. We're 9 not trying to prove that those negative things are true. 10 We're trying to prove that the negative statements are 11 being made. 12 THE COURT: The objection is sustained. 13 BY MR. PURCELL: 14 Q You can't answer that one. All right. I'm 15 going to show you what's been marked as Plaintiff's Exhibit 16 Number 6. Would you identify that three page packet of 17 documents for the Court, please? 18 A Yes. It's a letter from Lobar Associates. 19 20 21 Q And what is the essence of the letter? Why do we have that? We have the letter because we had an order What is it? A 22 with Lobar Associates on the Central Penn Advanced 23 Technology Building in Summerdale. 24 Q And what is the date of the letter that they 25 sent you? 23 "i' A May 16th. Q Of this past year? A May 16th of 2001. Q All right. And the second page seems to be the essense. The first page looks like it's a faxed cover 1 2 3 4 5 . "e'.' ',J . '. - - ~"" ';.'--", . '-' ' , " ' --llir{'~~-ittf~i o 0," '. 6 sheet, but the second page is the letter that you're 7 referring to; is that correct? 8 9 10 A Yes, sir. Q And that letter is addressed to who? A The letter is addressed to Mason Norton 11 Company to the attention of Scott Thumma. 12 Q All right. And it references a job that 13 Mason Norton Company was bidding on? 14 A It represents a job that Mason Norton 15 Company did bid on. 16 17 18 Q Okay. At that time? A Yes. Q All right. And at that time Mr. Thumma was 19 the sales manager involved in that bidding process? 20 21 A Yes. Q All right. And does the letter indicate 22 that you've been awarded the job? 23 24 A Yes, sir, it does. Q It actually says the letter's to confirm 25 Lobar Associates intent to award your trade portion for the 24 =,1 ,"" '0' i\.-li~~""",,1!<<-"1','" c o 1 above-referenced project, and then talks about what you had 2 to do in order to get to that point; is that correct? 3 4 5 A Yes. So you had not actually received a purchase Q order from them at that point in time? You simply had a 6 letter of intent; is that correct? 7 8 A That would be correct. Q All right. Now, Mr. Thumma left your 9 employ about two weeks later; is that right? 10 11 A That would be correct. I'll show you what's been marked as Q 12 Plaintiff's Exhibit 7, and I'll ask you to identify that 13 letter. 14 15 16 17 Associates. A This is a letter that we received from Lobar The letter's dated July 12th, 2001. And what does that letter inform you of? It informs us the -- this letter is to Q A 18 inform you that Mason Norton Company will not be providing product for the above referenced project. 19 20 The owner has requested we use his supplier for this project. We 21 apologize for any inconvenience that you have incurred for 22 the submittal process. This in no means has any negative 23 bearing on our business relationship with either -- with 24 each other in the future. 25 Q All right. Now, when it's referring to the 25 ~-, , -." " "'~-, " ^'... ~::: ~. "'IMw' -' i7" Ds:L.Jl!iL'.I!i~ - ~ t 3I'f~",,~':.H,~L c . 1 job project, are we talking about the same project that you 2 had previously obtained a letter of intent to award the job 3 to you? 4 Yes, sir. A 5 Q Do you know how much that job would have -- 6 how much that job was? 7 A The value of the job? 8 9 Q A Yeah. My recollection was that it was somewhere in 10 the vicinity of $10,000.00. 11 Q All right. I'll show you a document which 12 has been marked as Plaintiff's Exhibit 8. Perhaps you can 13 take a look at that, identify that for the Court, and see 14 if that refreshes your recollection. 15 A The Exhibit Number 8 is a copy of our order 16 record for that particular job. 17 Q Does that indicate and refresh your 18 recollection of how much the job was? 19 20 21 22 23 24 25 A Q The job was $11,910.00. Yes. Does it also indicate what you estimated your profit to be on that job? A Yes, sir. Q And what was that? A $1,121.00. Q Now, if I understand Exhibit 7, the 26 ,:: ~I.w<"-.",--~""~,,,_ o o 1 contractor told you you're not getting that job, despite 2 what they sent you previously? 3 A Yes. 4 Q And they told you that by a facimile dated 5 July 12th, 2001? 6 A That's correct. 7 Q Did you check into find out exactly who that 8 job was awarded to ultimately? 9 10 11 12 13 14 15 A Yes, we did. Q And who was that awarded to? A Hostetter Supply. Q Okay. And was Mr. Thumma working for Hostetter at the time that it was awarded to them? Yes, sir. A Q Now, Exhibit 4, Plaintiff's Exhibit 4, which 16 is your noncompete agreement, talks about as a condition of 17 employment having the employee agree that they will not 18 seek employment with a competitor for a period of 5 years 19 following the termination of employment with Mason Norton 20 21 22 Company, correct? A Yes, sir. Q Is there a reason why 5 years was picked as 23 opposed to some other time frame? 24 A Well, we feel that over a 5 year period not 25 too much of the business really changes. We deal with the 27 '-'''''-i..i:li&' -'~:>'k"~;6'.._--, .~ ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 4, .1" , ~. ~~lL-Wl-'> o o same manufacturers. We deal with the same contractors. The percentage of profit, the structure continues to be the same. Q So if you have a smaller number, like a two year or a three year period, that would not have been adequate to protect the interest of Mason Norton Company? A Especially in this business we do not feel that that's long enough. Q All right. MR. PURCELL: I have no other questions, Your Honor. THE COURT: Mr. Makowski. CROSS EXAMINATION BY MR. MAKOWSKI: Q Good afternoon, Mr. Preble. It's true that you and Hostetter Supply -- I'm sorry. I'll speak up. A You have to speak up, sir. I can't hear you. Q It's true that Mason Norton and Hostetter 20 Supply solicit the same bids for contractors, correct? 21 A Sir, I can't hear you. 22 Q I'll just try to speak up. Is it true that 23 Mason Norton and Hostetter Supply solicit the same bids for 24 contractors? 25 A Repeat that. 28 l~( ___'b 1 2 " ~ "'1- ~.. < "', _ _"__"U4iii-,"ic' '.."'" o o Q Did you not understand the question? THE COURT: Are you able to hear me, Mr. 3 Preble? Are you able to hear me now, Mr. Preble? 4 5 THE WITNESS: Go ahead. MR. MAKOWSKI: I don't mind moving if 6 counsel has no objection, if I can stand over there. 7 8 hear you either. 9 BY MR. MAKOWSKI: 10 11 12 13 away. 14 15 THE COURT: I'm afraid I won't be able to That microphone should work. Q A Are you able to hear me, Mr. Preble? That sounds better. Q All right. Just stop me if I stray too far A Okay, sir. It's true that Mason Norton and Hostetter Q 16 Supply solicit from the same contractors, correct? 17 18 A Q Yes. And that Mason Norton and Hostetter were in 19 competition prior to Mr. Thumma working for Hostetter 20 Supply? 21 22 A Q That would be correct. And that in this prior period you both 23 contracted -- or solicited bids from the same contractors 24 on the same jobs at times? 25 A Many times, yes. 29 "'; - 1 ~~ 1-,- iji'1<r~i-~5f:i--:;;,o- c . Q The exhibits that are marked Plaintiff's 2 Exhibit 2, and I believe it's 4, the agreement not to 3 compete or the restrictive covenant, however you look at 4 it, they're essentially the same document except for the 5 date on there, correct? 6 7 8 9 10 11 12 A Q A That would be correct. Okay. When was Mason Norton incorporated? When was Mason Norton Company incorporated? Q A Q A Yeah. It was incorporated twice. Okay. It was incorporated -- I believe it was 13 incorporated when it first started some 49 years ago. 14 Q Okay. Um-hum. 15 A I changed it to an S corporation in 1998, I 16 think it was. 17 Q And it was your testimony earlier that all 18 the obligations and rights of the previous entity 19 transferred to the new entity, correct? 20 21 A Q Yes, that's correct. Do you have any agreements, any signed 22 agreements to that effect? 23 A No. 24 Q Specifically towards the restrictive 25 covenants here, do you have any signed agreements on those? 30 '2.,[ . . -WJ-' '~ -, 01' ,.~ '~~i1~@1j ~ c o 1 A No. Just the fact that everything was 2 assumed by the corporation. 3 Q Was new consideration given to the employees 4 5 6 7 8 who had the restrictive covenant? A Beg your pardon, sir. Q Was anything given to the employees for the -- when this document was assumed by the new corporation? A No. Q Several of your employees have similar 9 10 restrictive covenants, correct? 11 12 A That would be correct. Q And you have attempted to enforce these 13 covenants before, correct? 14 15 A That's correct. Q And when you attempted to enforce them 16 before, it was not upheld, correct? 17 MR. PURCELL: Objection, Your Honor. I 18 don't think what happened in the past is relevant to this 19 situation. 20 MR. MAKOWSKI: It is relevant in the fact 21 that it is the same document. If one Court says that it 22 was not upheld, it is the same document. 23 MR. PURCELL: But it could have been for 24 completely different reasons having nothing to do with the 25 document itself, if, in fact, that were the case. 31 tr.\ ~ , 8 9 10 11 12 13 14 15 ~ ~> ,,~J' J __; ; -"->"~'b1Jlf";,;;~:I,;;:w"Fl'" o 4) 1 2 3 4 5 6 THE COURT: You're not talking about the same defendant? MR. MAKOWSKI: No, not the same defendant. THE COURT: The objection is sustained. BY MR. MAKOWSKI: Q You deal with manufacturers under exclusive 7 contract, correct? A Yes. Q That means they are not allowed to supply to Hostetter Supply, correct? A I guess that would be correct, yeah. Q So if Hostetter Supply were bidding on the same job, they would not be able to use these manufacturers, correct? A That would be correct. 16 Q And the price structure that you receive 17 from these suppliers or these manufacturers is exclusive to 18 Mason Norton Corporation, correct? 19 20 A Q That would be correct, yeah. When Mason Norton is bidding on a contract, 21 I guess it would be called, the price structures are not 22 always identical on each job, are they? 23 A There's no way for me to know that. 24 Q Perhaps if I rephrase the question. You 25 don't have a standard markup for every single job? 32 _ ~.a ~ _ - -. +'1"U l!lil{ ~~'~11.<~~;i;;;' c .. v 1 A Every job does not have a standard markup, 2 no. 3 Q So that every job that you bid on is a 4 separate independent job that you determine your profit 5 structure independently, correct? 6 A That probably is correct. 7 MR. MAKOWSKI: I have no further questions. 8 THE COURT: Mr. Purcel1. 9 MR. PURCELL: Just one or two just as a 10 redirect, Your Honor. 11 THE COURT: Sure. 12 REDIRECT EXAMINATION 13 BY MR. PURCELL: 14 Q Other than Winco Windows, which we discussed 15 earlier that you have an exclusive representative contract 16 for, how many other contracts -- or how many other 17 manufacturers do you have exclusive contracts with? 18 A Probably -- including Winco, there's 19 probably a total of about four. 20 Q Okay. So you have the ability to be the 21 exclusive representative for a windows manufacturer, and 22 you have the exclusive ability to represent the 23 manufacturing interest of at least three others; is that 24 correct? 25 A Yes. 33 I,~~~ 1 -- ~'" ~ ~~",:_~~;,"i(",j:, ' o . 1 2 Q A Three other types of materials? Yes. 3 Q All right. But you don't provide, and you 4 don't bid on just four types of materials. You bid on 5 numerous types of specialty building contracts, many of 6 which are provided by manufacturers that you do not have an 7 exclusive listing contract with; is that correct? 8 9 10 11 12 A That would be correct, yes. Q All right. And in those circumstances, of course, Hostetter, as competitor, would be free to obtain pricing from the same manufacturers that you obtain from? A Yes, sir. 13 Q And in many occasions on these competitive 14 bidding contracts, the manufacturer of the product are 15 specified in the contract, are they not? 16 17 A Q That's correct. So you have to actually go to specific 18 manufacturers if it's called for in the specs of a 19 particular bid? 20 A That would be correct. 21 Q Okay. So the only thing that would be 22 different in the circumstances like that would be the 23 profit margin that you build into bid if both you and the 24 competitor are going to the same manufacturer for the same 25 product? 34 . . . =' 1-- ~ ~"- '_~lt;';.;;ii~! 40 . 1 2 A That's correct. MR. PURCELL: Okay. I have no other 3 questions. 4 THE COURT: Mr. Makowski. 5 MR. MAKOWSKI: I have no recross. 6 THE COURT: It would help me to have some 7 idea of the size of the plaintiff. I don't know if we're 8 dealing with something the size of General Motors that has 9 thousands of employees or something that's a marginal 10 operation. So if counsel would ask a few questions on 11 that point it would help me. 12 MR. PURCELL: I'll be happy to. 13 BY MR. PURCELL: 14 Q Mr. Preble, could you -- I guess let's start 15 with the size of the business. What's a good measure of 16 measuring the size of your business? Gross sales? 17 A Probably, yeah. 18 Q Okay. What roughly is your gross sales for 19 the last year? 20 A Acceded five million. 21 Q Five million dollars? 22 A Yes. 23 Q And how many employees do you have to 24 generate that type of gross sales? 25 A There are 16, including our insulation 35 ~@ --==~ ,'~ . . ,'- I~"",-,~;, "" ' c o 1 department. 2 Q Okay. And in terms of net profits, can you 3 roughly approximate what the business made over the last 4 year? 5 A I would rather not divulge the answer to 6 that question. 7 Q Okay. Then we won't go that far. How 8 about the margin of profit? Can you tell us roughly -- I 9 mean is this a very competitive business? Is it difficult 10 to make a dollar? 11 12 A Q It's very competitive. Okay. 13 A Sometimes the State makes more money in 14 sales tax than we do. 15 16 17 18 19 20 21 22 23 24 Thank you. MR. PURCELL: Okay. Does that help Your Honor? It helps. THE COURT: How many employees are sales people? THE WITNESS: Currently there's one. THE COURT: Okay. Mr. Makowski, do you have any questions along that line? MR. MAKOWSKI: No, Your Honor, I do not. THE COURT: Okay. You may step down. 25 THE WITNESS: Yes, sir. 36 ~~~~c~ ~,Mi~"".ti~;ii-"'i, ~" . ~~. -I ' I I~-' ,;.~~_ -iJl-:..:iiilllO~ -"-~Wii-I/lii<\,'~," o . 1 MR. PURCELL: Your Honor, I have no other 2 witnesses. The only thing I would do is move for the 3 admission of the exhibits. 4 5 MR. MAKOWSKI: I have no objection. THE COURT: All right. Plaintiff's 6 Exhibits 1, 2, 3, 4, 5, 6, 7, and 8 are admitted. 7 (Whereupon, Plaintiff's Exhibits 1 through 8 8 were admitted.) 9 10 THE COURT: Mr. Makowski. MR. MAKOWSKI: Your Honor, I would like to 11 call Scott Thumma. 12 Whereupon, 13 SCOTT W. THUMMA 14 having been duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MR. MAKOWSKI: 17 Q Good afternoon, Mr. Thumma. Could you 18 please just state your name and address for the record, 19 please? 20 21 A Scott W. Thumma. I reside at 509 Fifth Street. Did you want the business address or home 22 address? 23 24 Q That's fine. Where do you currently work? THE COURT: Wait. We don't have an address 25 yet. 509 Fifth Street. 37 'M --~ 10 11 12 13 14 15 16 THE COURT: THE WITNESS: BY MR. MAKOWSKI: 1 2 Pennsylvania. 3 4 5 6 Q A Q A 2001. Q A Q A which I would frame. Q A , , J ' , I ,~ "d,~,~ ' ~~ . '- " ''''~~ilil;,(""1;,L"",.1,1'>,'-;-:j,, 7 8 9 o o THE WITNESS: In New Cumberland, Okay. Thank you. Urn-hum. Where are you currently employed? For Hostetter Supply Company, Incorporated. And when did you begin working there? I am going to say it would be mid June of Did you previously work for Mason Norton? Yes, I did. And when did you leave? It would be the very end of May, 2001, approximate the 30th or 31st, in that time 19 hear it, but I'll be as brief as possible. I had -- and 20 I'll cite two main reasons. In January of 2001 while 21 riding with George Preble to a job site in Chambersburg, 22 Pennsylvania, he had informed me that he could no longer 23 afford me and the monies I was making at Mason Norton 24 Company, Incorporated. He had informed me that he would 25 understand if I would have to seek gainful employment 38 ~ ".. 1 elsewhere. 2 total service. 3 4 the other one? 5 ~ ~ ". ". ~, -- ~ 1>. j ""'_~,*j""'hb'0 c o That was quite a shock when you give 16 years Q You said there were two reasons. What was A The second reason, prior to my departure 6 George had, after timeless episodes of citing myself as 7 quite numerous reasons of problems going on with work and 8 wishing for me to be out on the road more, calling on 9 contractors more, to be a salesman, even going to the point 10 of showing me a photocopy of what a salesman is and defined 11 as, I asked George, do you or do you not wish me -- wish 12 for me to be a part of Mason Norton Company. George 13 Preble's exact words, I don't give a fuck. 14 15 16 Q A Is that when you quit? I said not one more word. I didn't feel there was a need to say one other word. There was no 17 employee of Mason Norton present during that confrontation. 18 Q You heard Mr. Preble's description of your 19 job duties at Mason Norton. Would you agree with them? 20 21 A Yes. Your current employment with Hostetter, Q 22 are you doing the same job? 23 24 A Not the exact same job. I'm doing multiple facets of the business. Now instead of just selling a 25 product to a general contractor, I have the ability to go 39 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 , I. -"- --. 1r$'<\t,k,+:WIi~~h1'6~" c o 1 out and review blue prints, to work up my own estimates, to 2 quote general contractors who were bidding projects, and 3 closing them, and giving them service. 4 Q You say that's at Hostetter you're able to 5 work up your own estimates. Did you do that over at Mason 6 Norton? A Q No, I did not. And at what point in the process is price structure and costs structure incorporated into a bid? A Well, as a general rule, as I found in getting together with Dave Hostetter and Hostetter Supply Company, Incorporated, the markups are very minimal to begin with. We follow up projects to find out where our price differentials would be job in and job out, and I have the ability to do that moreso now. However, with jobs the time list would fall within a comparable markup to what Mason Norton Company's would be. Very rarely in this industry can you go beyond 10 to 15 percent to begin with. Q I'm going to show you a document that's been labeled previously as Plaintiff's Exhibit 6. Your Honor? If I may, THE COURT: Certainly. 24 BY MR. MAKOWSKI: 25 Q If you could, Mr. Thumma, just please take 40 "f~ ~ 1 .~ ^'I~. "'.' .0 . 1 a look at that document and describe what it is, please. 2 A It's a letter dated May 16th of 2001. 3 congratulations to Mason Norton on an intent to award a 4 trade portion for the above-referenced project. The said 5 name, Central Penn Advanced Technology Building, 6 Summerdale, Pennsylvania. 7 Okay. Have you seen that That's fine. Q 8 document before today? 9 A From my recollection, this particular job I 10 was called and given a verbal order. As far as the hard 11 copies of what's here. 12 Mr. Thumma, I'm also going to show you a Q 13 document that has been marked and admitted as Plaintiff's 14 Mr. Thumma, on that document there's a highlited 7. 15 section. Could you please read that section to the Court? 16 The owner has requested we use his supplier A 17 for this project. 18 19 20 Does it indicate who that supplier is? No, it does not. Did you bid on that project on behalf of Q A Q 21 Hostetter Supply? 22 23 No, I did not. Do you know if Hostetter Supply did bid on A Q 24 that project? 25 A Hostetter Supply originally bid the job at 41 . . -<l",-'IOI,.,""'~~,;,;*-if,"-"'- ,. -- t., ~,,=' , -'"_...w.lJ;UlI~i:.--,,~,,"'''"',;,V' o . 1 the time of the bid, which was Dave Hostetter. 2 Q We heard Mr. Preble testify that Mason 3 Norton does business in Pennsylvania and the surrounding 4 states, including Maryland, New Jersey, New York, Delaware 5 and West Virginia. Would you agree with those statements? 6 A I would agree to Maryland. Central 7 pennsylvania -- or pennsylvania, Maryland. Delaware, they 8 had gotten into. I wouldn't really say too much at all in 9 New Jersey, but, you know, if he's gotten any work there 10 Q Where is Hostetter Supply's main area of 11 business? 12 A Our goal or our trajectory consists of 13 Central Pennsylvania. 14 Q When estimating for a bid on a particular 15 project, which manufacturers -- strike that. How does one 16 determine which manufacturers to use when estimating a bid? 17 A Said manufacturers are listed in the written 18 specifications, and we would want to utilize the specified 19 manufacturer given a project to project basis. 20 Q If you were using the same manufacturer for 21 two different projects, would the profit structure on each 22 of the jobs be identical on that product? 23 A It really depends upon the volume of the 24 product itself. It could fluctuate. 25 Q Mr. Thumma, how long have you been working 42 ,,'1- b..M" - -- _"'Ir;l;f"'",k,~,,,;.,~Ai'; c e" ,..,- 1 in this field? 2 A For 16 years. 3 Q Have you worked for anyone -- have you had 4 other types of employment during those 16 years? 5 A Well, my brief departure from Mason Norton, 6 I had sold computer business forms for approximately a 7 year. 8 Q Do you have any other employment currently? 9 A Yes, at Hostetter Supply Company. 10 Q I mean outside the field. 11 A Oh, no, sir. 12 Q I'm going to show you a document that's been 13 labeled as Plaintiff's Exhibit 5. Mr. Thumma, that's 14 already been identified. So if you can just describe that 15 letter, not the actual details of it, but what was the 16 purpose of that letter? 17 A I had been contacted from several blazing 18 contractors to -- and in particular this document here, a 19 request from Zephyr Aluminum in Lancaster, Pennsylvania, 20 who trades in not only Central Pennsylvania, but also 21 Maryland and Delaware as well. Mason Norton Company's 22 territory in as far as the overall outline of this area was 23 Central Pennsylvania. This job, as you'll notice, is 24 Cecil County, Maryland, which Winco already has an 25 established rep. 43 ~I-tl ~ . ,,,,1,, ~,~'. ''''-;'--ii~'"" ~"~...-,,,,-<>,,)~,,;~u;".; o o 1 Q To the best of your knowledge, Mr. Thumma, 2 pricing and cost structure in this kind of business, are 3 they something proprietary or are they standard throughout 4 the industry? 5 A It seems ,to fall within the standard of the 6 industry, if you're fortunate enough to make over 15 7 percent on a job, God bless you, but it is a very 8 competitive market, but from what I've seen over the years 9 and years of following up projects, that we seem to fall 10 right within the same realm of who we've lost to, with the 11 exception of if somebody's made a tragic mistake on a 12 project. 13 Q When you were working for Mason Norton, are 14 you aware of bids that were placed by Hostetter Supply? 15 A Yes, when following them up with contractors 16 that Mason Norton had bid to, yes, I was aware of Hostetter 17 Supply. 18 19 Honor. 20 MR. MAKOWSKI: I have nothing further, Your THE COURT: Mr. Purcell. 21 CROSS EXAMINATION 22 BY MR. PURCELL: 23 Q Mr. Thumma, in your experience you have 16 24 years working in this building specialties field; is that 25 correct? 44 -- ~ 1 2 " d.. " ~ ;,,,-~ -'lill"W=r.~~'!i'-'-"r-'J 40 o A That is correct. Q And all of that, with the exception of 3 recently, you gained through your employment with Mason 4 Norton Company, correct? 5 6 A That is correct. So everything you know about the business, Q 7 you learned by working for Mason Norton Company, correct? 8 9 too. 10 A I would say I learned an awful lot myself Q Okay. While working for Mason Norton only 11 because you were in a position of working in that 12 particular job? 13 14 A That's all I've ever known. And you agree, I believe, that Hostetter and Q 15 Mason Norton Company are competitors for the same jobs, 16 correct? 17 18 A That is correct. Q Now, this letter that you sent to Winco, 19 which has been marked as Plaintiff's Exhibit Number 5, was 20 a request to obtain a pricing for Zephyr Aluminum; is that 21 correct? 22 23 A That is correct. Q And Zephyr Aluminum is within the 24 representative geographical area for Mason Norton Company, 25 are they not? 45 1 2 3 4 5 6 7 8 9 10 --'I'" ,I "c'lli'--"""'""' rOil,~~"""""~,*;\,,,_,' 40 . A The project was in Cecil County, Maryland. Q But that was -- that's not the answer to my -- that's not the question I asked you. I asked you if zephyr Aluminum was within the geographical location in the exclusive contract they had with Winco? A I would say yes and no if I could answer it. THE COURT: Sure. THE WITNESS: Yes in the fact that Zephyr Aluminum trades in Central Pennsylvania for Pennsylvania bids. I was attempting to bid a project in Cecil County, 11 Maryland, not Central Pennsylvania. 12 BY MR. PURCELL: 13 Q Now, this letter you sent to Winco was after 14 you had previously attempted to obtain quotations from 15 Winco, and they had sent you a letter telling you that you 16 needed to do that through the appropriate representative; 17 is that correct? 18 A That is correct. 19 Q And according to the exhibit -- Plaintiff's 20 E~hibit 5, the request came from Zephyr Aluminum out of 21 Lancaster, Pennsylvania; is that correct? If you look at 22 page 3 of that -- the third page of that exhibit. 23 A Yes and no, if I could answer it that way. 24 Yes, it was faxed from Lancaster, Pennsylvania's office for 25 a project, and as you can see on the -- on Zephyr's cover 46 'i '>~~ . ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 "~ ..J '" .1", ,',"' ~"~'*tWJ';, o . letter, the project was Cecil Community College Education Center located in Cecil County, Maryland. You can further see their office that they would work that out of would be the Baltimore area office. Q Where does it say they would work that out of the Baltimore area office? A As you can see, they're transmitting offices of Baltimore Maryland, Lancaster, pennsylvania, and Wilmington, Delaware. Q But it doesn't indicate there that they're going to work that out of the Baltimore office, does it? A I would only assume that a job in Cecil County, Maryland would be not in Mason Norton Company's territory. Q I'll show you what's been marked as Plaintiff's Exhibit Number 9. Do you recognize that letter? A Yes, I do. Q Now, that's the letter that we just talked about a minute ago that you had received prior to sending the letter on December -- or I'm sorry, on September 13th. It's Plaintiff's Exhibit 5. Is that right? A Q That is correct. And Winco sent that letter to you. That's 25 a letter from Winco; is that correct? 47 ".,-1. . .' iJ"~ ~'"...;,' , . ",,""'1It!~';:'\b-.""~~'_Y o o 1 A That is correct. 2 Q And in that letter they're responding to 3 your interest in obtaining information and pricing 4 information about windows; is that right? 5 A That is correct. 6 Q And they tell you any business you wish to 7 do with winco Window Company must be directed through the 8 appropriate rep? 9 10 A Q That is correct. And despite receiving that you sent them 11 this letter two days later that's marked as Exhibit 5; is 12 that right? 13 A Correct. As you'll also note though, John, 14 the appropriate rep -- project in Cecil County, Maryland is 15 not in Mason Norton Company's territory. 16 Q Well, were you trying to -- is what you're 17 saying is you were trying to get pricing from Winco in 18 contravention of different reps exclusive listing contract 19 or Mason Norton's contract? 20 A A price from the appropriate rep for that 21 said given job in Cecil County, Maryland. 22 Q Well, you were actually trying to circumvent 23 any rep; is that correct? You were going directly to 24 Winco? 25 MR. MAKOWSKI: I'm going to object to that. 48 - "I,> -" ~. U lil ~ """'; """~,.',~~J1~,~'1 to . 1 It's beyond the scope. It's not relevant. 2 THE COURT: Your objection's noted, but 3 overruled. 4 BY MR. PURCELL: 5 Q You can answer that. 6 A Well, it was always my understanding with 7 the Winco Window Company that they had said given reps for 8 territorial areas. A lot of the representatives that are 9 out beyond Mason Norton Company's area would be granted 10 commissional monies, which usually would encompass 11 approximately five to six percent. 12 My thought was on a job in Cecil County, 13 Maryland I still might stand a chance of competing even 14 with the appropriate rep in Cecil County, Maryland, with 15 their six percent plus whatever I would quote that project 16 at. 17 Q Well, when you went to winco with your 18 letter of September 13th and you told them that both have 19 steered away from Winco due to it's lack of service and 20 hands-on approach from its current rep, what current rep 21 were you referring to? The one down in Maryland? 22 A The two blazing contractors I have mentioned 23 in the letter that informed me that they were no longer 24 interested in dealing with Mason Norton. 25 Q Mason Norton Company in Bedford? Are those 49 qj.' -. I" , i" b, I <' ",,~, "> ~~~l~,*kJi)$':';', o 00+ .' 1 the two reps? 2 A Correct. 3 Q Okay. 4 MR. PURCELL: I have no other questions, 5 Your Honor. 6 MR. MAKOWSKI: I have no redirect, Your 7 Honor. 8 THE COURT: All right. One of the issues 9 that I would have to consider if I do issue a preliminary 10 injunction is the question of the amount of the bond to be 11 required from the plaintiff, and to that end it would be 12 helpful to me to know what sort of salary the defendant 13 would be losing if he did have to leave his present job. 14 MR. MAKOWSKI: I can question him on that, 15 Your Honor. 16 THE COURT: All right. 17 BY MR. MAKOWSKI: 18 Q Mr. Thumma, can you please inform the Court 19 as to your present salary? 20 A $55,000.00 a year. 21 Q Is that a strict salary? Do you receive 22 bonuses? Commissions? 23 A It's a salary. There would be an 24 additional bonus at Christmas time paid weekly. 25 Q Is there any other income from this 50 2 3 4 5 6 that. 7 8 Thank you. 9 THE WITNESS: Thank you. 10 MR. PURCELL: Your Honor, I may have some 11 rebuttal testimony, if I may have a two minute break to 12 13 , '" :J:I"~f' -~ -,,':;i-- ~_."'""%':i! o o 1 employment that we should be made aware of? A No, sir. MR. MAKOWSKI: THE COURT: Thank you, Mr. Thumma. Mr. Purcell. MR. PURCELL: I have no questions about THE COURT: Okay. You may step down. confer with my client. THE COURT: Mr. Makowski, does that 14 conclude the defendant's case in chief? 15 16 17 18 19 20 21 22 23 24 MR. MAKOWSKI: Actually, no, it does not, Your Honor. THE COURT: Okay. Go ahead. MR. MAKOWSKI: I would like to call Mr. Herbert Preble, please. MR. PURCELL: I would like an offer of proof, if I may, Your Honor. MR. MAKOWSKI: Your Honor, the offer of proof is such that Mr. Preble, according to Plaintiff's 2 and 4, was the President of Mason Norton Company as it's 25 listed on the letterhead. It was for his benefit that the 51 ~~ I, " '"~'" loI; ~ ~'"' G " ,-........~\lfo~-"~""'~>,p~, o o 1 2 3 4 5 6 questioned documents were -- came into being. It was Mr. Preble himself who drafted the document. I think it's relevant as to his intent and his understanding of these documents at the time that they were executed. THE COURT: Okay. Mr. Purcell. MR. PURCELL: Well, Your Honor, it seems to 7 me then what he's offering is parole evidence that's 8 attempting to modify or explain a contract which is not 9 ambiguous on it's face. I think you can read the contract 10 very clearly. It says what it says. 11 Unless there's some allegation that it's 12 ambiguous, I don't think there's anything in the pleadings 13 indicating that. I think, you know, the four corners of 14 the document, you can tell what it says without necessarily 15 having somebody come in and interpret it for you. I think 16 that's outside the realm of the witnesses purview. 17 18 MR. MAKOWSKI: I disagree that it is obvious on it's face. Several factors, including 19 employment for any other company, individual or myself in 20 competition. Nowhere in this document is competition 21 defined. It specifically lists myself as part of the 22 excluded parties, so to speak. 23 I think that it -- because these terms are 24 undefined, I think Mr. Preble's opinion and his 25 understanding of this document is very important. 52 ir[ """, ~-- j .ml,.' , . ':,g,w#u~;;m,:'! o o 1 THE COURT: All right. I'll permit the 2 testimony over objection. 3 Whereupon, 4 HERBERT PREBLE 5 having been duly sworn, testified as follows: 6 DIRECT EXAMINATION 7 BY MR. MAKOWSKI: 8 Q Good afternoon, Mr. Preble. Can you hear me 9 okay? 10 A Yes, I can. Q Please state your name and address for the record. A My name is Herbert M. Preble. My address is 508 Indiana Avenue, Lemoyne, Pennsylvania. 11 12 13 14 15 Q Thank you, Mr. Preble. Can you identify 16 who drafted the documents that are listed as Plaintiff's 2 17 and 4. Let me show you one if I may, Your Honor. 18 MR. PURCELL: Your Honor, may I have a 19 standing objection if we're going to -- 20 THE COURT: No. If you want to object, you 21 should actually make the objection. It's too confusing for 22 me to consider that there's an objection to everything that 23 might be asked. So if you feel there's something 24 objectionable, just make the objection at that time. 25 MR. PURCELL: Again, I don't see the 53 <0 ~~ ,~ ~ .~,"",I~ ~ f i't 'i'J1,wa;-.3>0-"dF(/i-,; o o 1 2 3 4 5 6 7 8 relevancy in this situation. You're offering parole evidence. Who drafted the agreement is only relevant if you're dealing with an ambiguous document in which you're trying to construe against the drafter. I don't necessarily think we're trying to do that under these circumstances. THE COURT: Mr. Makowski. MR. MAKOWSKI: Well, I've already addressed 9 the fact that I believe myself the document is ambiguus 10 based on it's plain language, and as such, I just need to 11 -- we're not trying to construe it against the drafter but 12 merely determine what the drafter had intended to achieve 13 with this document, and because it is ambiguous I think 14 that it becomes relevant. 15 MR. PURCELL: Your Honor, it's nice to say 16 it's ambiguous, but where's the ambiguity? I think counsel 17 must point out where the ambiguity is. 18 MR. MAKOWSKI: I believe I already have in 19 competition. In competition. How do you define 20 competition? Would it be anybody that makes money? Would 21 it be anybody that sells supplies? Would it be anybody 22 that is a manufacturer? Can a manufacturer go directly to 23 these people and bid themselves? You would not say the 24 manufacturer is in competition with a broker. So I think 25 the fact that there is vague language in there to that 54 ,~ " II,.., I, Wit. ;"-_~",-~~wj;;; e o 1 extent is critical. 2 MR. PURCELL: Well, you're asking the 3 witness to make -- to give an opinion as to the ultimate 4 question here, which is something that I think the Court 5 has to do. That's the Court's responsibility, to 6 determine what competition is, and whether the two 7 businesses we're alleging here are in competition with each 8 other. 9 If there's factual questions concerning 10 that, that's one thing, but to have someone give an opinion 11 as to whether they're in competition or not, whether that 12 was their intention when it was drafted, God knows how many 13 years ago, I think is definitely outside the purview of 14 this. 15 THE COURT: I'll permit the testimony 16 without binding myself to a ruling on whether the language 17 is ambiguous or not. I'll have to take a look at it 18 later on. 19 20 21 BY MR. MAKOWSKI: Q Mr. Preble, I've just handed you two documents labeled as Plaintiff's 2 and Plaintiff's 4. The 22 body of those documents, can you tell me who wrote that? 23 A Yes, sir. I wrote it. 24 25 Q A And when did you write it? I wrote it many years ago when I was the 55 '...-~"'" ~ 10 ,,' , ~I......;., " " ''<f;><w ~., ";',a;\l",g;;fiwatu o o 1 President of the original corporation of Mason Norton 2 Company. 3 4 Q A And why did you write it? I wrote it because at that time I had a 5 pretty well going business, and four people left me and 6 went into business for themselves, and it bothered me so 7 that I felt that at least I wanted other people to feel 8 that they should stay with me and not walk off the job or 9 if they did at least not to go into business against me. Q Did you ever enforce that agreement against 11 anyone? 12 13 14 15 16 17 18 19 A Q I never did personally, no. Was it your understanding that that document is a binding contract? A My understanding was that it was not a binding contract -- MR. PURCELL: Objection. THE COURT: Now wait. That's not admissible. There is an objection to that opinion, and 20 that's certainly objectionable. 21 MR. MAKOWSKI: Was that objection sustained, 22 23 24 25 further. Your Honor? THE COURT: Yes. MR. MAKOWSKI: Okay. I have nothing 56 'C~ 0, ..<_" _ _ ,..,I '-' IOy "~ ., ,:...:....'~~, i.";W;-i",:4,,-..<5,'<<~~; o o 1 THE COURT: Mr. Purcell. 2 CROSS EXAMINATION 3 BY MR. PURCELL: 4 Q Mr. Preble, at the time that you were the 5 president of the Mason Norton Company, and during the years 6 that you were involved with Mason Norton Company, which I 7 understand ended in about 1992; is that correct? 8 9 A Q Yeah, I would say it was about then, yeah. Okay. You also had other business 10 interests aside from the Mason Norton Company; is that 11 correct? 12 13 14 15 16 17 Yes, I did. A Q Okay. So when there's language in there talking about being in competition with Mason Norton Company or Herbert M. Preble, you were referring to all of your business interests; is that correct? A Not necessarily. That was written on Mason 18 Norton Company paper. 19 Q Okay. So your intention then, you're 20 saying, is that it was to prevent employees from competing 21 with the Mason Norton Company? 22 A I wanted them to think -- I know I couldn't 23 prevent them because I had had some experience before with 24 noncompetitive clauses in contracts. 25 Q You wanted them to think twice about leaving 57 iW ~ ~,'~ ." -'" "'-~"';"W~b;A\~ o o 1 you. Is that what you're saying? 2 A That is correct. 3 Q And what you're saying, if I understand 4 correctly, is you had no intention of ever enforcing this? 5 A I never had any intention of enforcing it. 6 Q All right. And when the employees were 7 asked to sign it, did you tell them, I never have any 8 intention of enforcing this. I just want you to think 9 about it? 10 A I never -- frankly, I wasn't the one who was 11 asking them to sign them except initially, not afterwards. 12 13 14 15 16 Honor. Q Okay. MR. PURCELL: No other questions, Your Honor. MR. MAKOWSKI: I have no redirect, Your 17 18 19 20 21 22 23 THE COURT: You may step down. Thank you. MR. MAKOWSKI: The defense rests, Your Honor. THE COURT: Okay. Mr. Purcell, do you want a brief recess? MR. PURCELL: Two minutes. THE COURT: Certainly. Did you want to 24 move for the admission of Plaintiff's Exhibit 9? 25 MR. PURCELL: Yes. 58 '0: - ;I~,. ~lilJi"'" JiLj :'4&i~~<;"""';;;;hd~ o ......... \tJ 1 THE COURT: Before we forget to do that, 2 Mr. Purcell. 3 MR. PURCELL: I would move the admission of 4 Exhibit 9. 5 MR. MAKOWSKI: I have no objection. 6 THE COURT: All right. Plaintiff's Exhibit 7 9 is admitted. 8 (Whereupon, Plaintiff's Exhibit No.9 was 9 admitted.) 10 THE COURT: We'll take a short recess. 11 MR. PURCELL: Okay. Thank you. 12 (Whereupon, a recess was taken at 3:20 p.m.) 13 AFTER RECESS 14 THE COURT: Mr. Purcell. 15 MR. PURCELL: Your Honor, just on rebuttal I 16 have a couple questions to ask my client. 17 THE COURT: Sure. 18 MR. PURCELL: It shouldn't take too long. 19 THE COURT: We're not in any rush. 20 (Whereupon, George Preble was recalled.) 21 THE COURT: Just for the record, would you 22 state your name again, please? 23 THE WITNESS: Yes, sir. My name is George 24 O. Preble. 25 THE COURT: And, Mr. Preble, you are still 59 ",-, ~ ,> , , .' "I ~ .J~ h..!I1~~~,': 40 0, ." 1 under oath. 2 THE WITNESS: Yes, sir. 3 THE COURT: Mr. Purcell. 4 DIRECT EXAMINATION 5 BY MR. PURCELL: 6 Q George, Scott previously testified that 7 there were two reasons why he left your employ in May of 19 8 -- or 2001. The first reason he gave was something to the 9 effect of a trip he took with you where you told him you 10 couldn't afford him, and you said you would understand if 11 he sought employment elsewhere. Did that occur? 12 A The trip occurred. 13 Q Could you tell the Court what happened 14 during that trip? 15 A During that -- prior to that trip Mr. Thumma 16 was on an hourly rate of pay, by the hour, plus time and a 17 half overtime when he worked overtime. On that trip I 18 discussed with Mr. Thumma the fact that I was going to put 19 him on a salary basis. He was a sales manager of the 20 company, and he was in the capacity of supervision because 21 there was another salesman in the company, and I told him 22 at that time that he would be put on salary. 23 Q Did you tell him that you couldn't afford 24 him and that you would understand if he sought employment 25 elsewhere? 60 '''" 5 6 7 8 9 10 11 12 I "~ ' JI_,." ~, ~ lLuli'{' ,,--"'~i/.is;~~i!I4;,Jii,~,t: o o 1 A No, sir, I never told him that. 2 Q Okay. The second item he indicated was you 3 had some kind of a -- apparently some kind of an argument, 4 and he asked whether you wanted him to leave and you, using an expletive, told him you didn't care essentially. that how it occurred? Is A I did not put it in those terms. I put it in the terms that I didn't give a crap what he did, but I sure didn't use the four letter word. Q Okay. And what was the argument about? mean what were you discussing? I A Well, it was precipitated by the fact that 13 Mr. Thumma continued to get in order files and do 14 expediting work when that was not what he was hired to do, 15 and that was not what he was supposed to do. His job was 16 to be the salesman of the company. The expediting part of 17 the business was my responsibility, and he continued to do 18 that time and time again when I asked him not to do that. 19 Q Okay. And you had discussions and perhaps 20 arguments about the same subject matter in the past? 21 22 23 24 25 A Q Yes, sir. And he didn't leave after any of those arguments? A Q That's correct. Okay. And this time he just walked out; is 61 '~ " ~L I", . ,,',,' , _."~ ... , """",",,-~r"'~~il\' c o 1 that correct? 2 A He just walked out. 3 Q All right. Did you attempt to contact him 4 afterwards to patch things up? 5 A I made an attempt that Friday evening. 6 Q And that was the Friday that it happened; is 7 that correct? 8 A I'm not sure whether it was the 31st. 9 Q Okay. But that Friday you tried to call 10 him? 11 A I think it was on a Friday, right, because I 12 made an attempt from ten minutes after five until about a 13 quarter of nine calling his home constantly to say let's 14 sit down and discuss the situation, and all I got was just 15 a run around, run around, run around, until his wife 16 finally came on and answered the telephone and just ripped 17 me for about 45 minutes. Ripped me up and down the street, 18 you wouldn't believe it. 19 MRS. THUMMA: That's because of the hell you 20 put my husband through. 21 THE COURT: Go ahead, Mr. Purcell. 22 MR. PURCELL: I have no other questions. 23 THE COURT: Okay. Mr. Makowski. 24 MR. MAKOWSKI: I have no cross. 25 THE COURT: All right. 62 " ~- 1 BY THE COURT: 2 Q , ~ 01'1' 'M*.i'''['U;ic~~~, "i'; _," o o When the company became a corporation for 3 the second time, did you have a new employment contract 4 with Mr. Thumma? 5 6 A Q No, sir. But his checks started coming from a 7 corporation instead of from the proprietorship? 8 A Well, the proprietorship -- when I was the 9 sole proprietor all of the contracts, agreements, all the 10 responsibilities of the sole proprietorship was assumed by 11 the corporation while it was made into an S corporation. 12 As the sole proprietorship I was the sole proprietor, and 13 as the S corporation I'm the president, the owner, the 14 secretary, as allowed by law. 15 Q But the checks, I assume, started coming 16 from the corporation? 17 18 19 A Q A 20 checks, right. 21 22 Thank you. 23 24 25 The checks that were written by the company? For salaries? Yes, they would have been corporation THE COURT: Okay. You may step down. THE WITNESS: Thank you, sir. MR. PURCELL: Nothing further, Your Honor. THE COURT: Mr. Makowski. 63 1 .,1 ,1"",-> ~" , .I!!lilili '''''-'~\''~~~;,' """.'" ~ o 1 MR. MAKOWSKI: I have nothing further. If 2 I just may have a few moments for closing. 3 THE COURT: All right. I guess the burden 4 of proof here would be on the Plaintiff so why don't I hear 5 from Mr. Makowski first. Do you have any cases on whether 6 a covenant not to compete is either enforceable or not 7 enforceable when a succeeding entity has become the 8 employer? 9 MR. MAKOWSKI: Let me see if it's how you 10 worded it, Your Honor. 11 THE COURT: I gather if you do they would 12 be in your memorandum. 13 MR. MAKOWSKI: Yes, it is in the 14 memorandum. I don't believe it addresses the exact 15 specific issue you're looking for, but there is case law 16 cited in there, and that would be our opinion. 17 THE COURT: Okay. Go ahead with the rest 18 of your argument. 19 MR. MAKOWSKI: Well, Your Honor, in this 20 case the restrictive covenant is, in our opinion, invalid 21 in many, many different ways. First of all, just on it's 22 face it says for a term of 5 years, and in the entire state 23 of pennsylvania. Now, I feel -- we feel that that is too 24 broad as far as the geographic location and the time 25 period. 64 - L ;""~"ii~j~;, e o 1 You've heard testimony from the plaintiff 2 himself that said that not much changes in the corporation 3 in five years. Therefore, it sort of self defeats the 4 purpose of the restrictive covenant if it's going to be 5 nothing changing in one year or five years or ten years or 6 fifteen years. The purpose of having a restrictive 7 covenant and a noncompetition clause has gone away. 8 As far as the entire State of Pennsylvania, 9 I believe, again, that geograhic location is just far, far 10 too broad. In fact many companies solicit bids within the 11 State of Pennsylvania, and many companies bid on those 12 bids. 13 You've heard testimony that Hostetter Supply 14 has been in competition with Mason Norton for years. 15 Mason Norton has won contracts. Hostetter has won 16 contracts. There's been nothing shown here that anything 17 was the action of Mr. Thumma. 18 If the Court chooses to believe the one item 19 that was shown, the one contractor with the profit of 20 $1100.00 roughly, again, that is one, though you've heard 21 uncontroverted testimony that Mr. Thumma had nothing to do 22 with that contract. 23 The second point on that, Your Honor, in a 24 temporary injunction the plaintiff needs to show 25 irreparable injury, and that there's no adequate remedy at 65 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .'1'-,-". J"",:. ~"-~~-.~'~ "1~<Milt~0 o o 1 law. In this case even if the Court were to believe that this injury -- that the $1100.00 in profit was the cause of Mr. Thumma, that is not an irreparable injury. That is available to the plaintiff when the case proceeds to full trial. The purpose of a temporary injunction is to go back to the status quo prior to. Now, it's been 6 months roughly since Mr. Thumma has left the employ of Mason Norton and has begun working with Hostetter, and in that time they produced one contract in the amount with a profit of $1100.00. There's really no immediate irreparable harm that we would seek to refrain from based on what we've seen here today. Also, Your Honor, in granting an injunction the Court should consider the harm -- the relative harms, the harm to the plaintiff if the injunction is not granted versus the harm to the defendant if it is granted. The harm to plaintiff even if the Court agrees with what was shown here today, is $1100.00. To Mr. Thumma it's his livelihood. He has a family. A wife and a family to support, and in imposing any sort of injunction at this time would rob him of his livelihood. Even despite the fact that should he prevail at trial, trial may not be any time soon. Further, the plaintiff is required to show that the right to remedy is clear or that they have a 66 """ I" , ~. - '~ ~~,.~~,a,.~CI>1'-i>"'il~~',-f o o 1 2 reasonable expectation to prevail. That has not been shown here. It's been, you know, one man's word against 3 another man's word, essentially. 4 The bottom line is, Your Honor, in this case 5 what they're seeking is relief based upon contracts. 6 Contracts that Hostetter and Mason Norton very well could 7 have been or bid for together before Mr. Thumma left. 8 They will be bidding on contracts even if Mr. Thumma should 9 be prevented from working. Some of those contracts will 10 go to Mason Norton. Some of those will go to Hostetter. 11 There's been no indication -- you've heard 12 testimony that the pricing structure there is industry standard. In fact, there's been no proprietary secrets On the one hand you've heard that they have 13 14 revealed. 15 exclusive manufacturers, but then on the other hand that 16 they're just dealing with manufacturers who supply to 17 anybody. In that case the cost structures are identical. 18 Also, Your Honor, as far as the agreement 19 not to compete, the business corporate entity has changed 20 its status. It has changed into a different entity. 21 There's been no -- any sort of assignment agreements or any 22 sort of reaffirmation. There's been no extra consideration 23 given to employees in order to enforce this. 24 In short, Your Honor, I find I think that 25 the restrictive covenant is just too broad, and for the 67 "...... " I.lihif ^~ ,~, - 11:.' ","""",",0""""'14'';'i, 40 ... V 1 reasons that I cited unenforceable, and we ask that you not 2 enforce it. 3 THE COURT: All right. Thank you. Mr. 4 Purcell. 5 MR. PURCELL: Your Honor, this is an equity 6 action so obviously we're asking for equitable relief. 7 The equity relief we're asking for is an injunction to be 8 imposed against the defendant for working for a competitor 9 in compliance with the agreement that he signed when he 10 took his employment twice. When he took his employment 11 twice with this company. 12 Restrictive covenants are enforceable if 13 they are incident to the employment relationship between 14 the parties. The restrictions imposed by the covenant are 15 reasonably necessary for the protection of the employer. 16 That's reasonably necessary and not absolutely necessary. 17 And restrictions imposed are reasonably 18 limited in duration and geographic. That pretty much 19 summarizes the case law involving noncompete agreements. 20 The Court has the ability, if it feels that the 21 geographical extent of the covenant and the time 22 temporal limitations are too excessive the Court does have 23 the ability to modify that so that it's reasonably limited 24 to protect the interest of the employer. 25 In this case I don't necessarily think 68 -- . . '~" J~~, ,"', ~. " ~'<~~'~&-';I o o 1 there's any occasion that needs to be made if you have an 2 agreement that for five years basically to just compete 3 with Mason Norton Company, Mason Norton Company has put on 4 testimony where that interest is. That's Pennsylvania 5 primarily, partially in Maryland, and the outlining states, 6 but primarily Pennsylvania. So the geographical location 7 would be simply not to compete with Mason Norton Company in 8 their same localities. He could certainly work for the 9 company and compete elsewhere. He doesn't have to compete 10 in Pennsylvania or Maryland. 11 Now, as far as the injunctive relief is 12 concerned, there is no adequate remedy of law. It is 13 impossible to figure out what jobs we're getting and what 14 jobs we're not getting based on information that the 15 defendant takes from one company to the other and uses to 16 obtain business for his new employer. That really 17 literally is impossible to figure out. 18 The would entail getting into the minds of 19 all the contractors who award the contracts that they all 20 bid on. It would entail getting into the minds of the 21 contractors who purchased their services without a 22 competitive bidding process. 23 It literally would be impossible. And then 24 to quantify that would be even more impossible because 25 you'd have to figure out what the profits are in each and 69 --~ L "' I" ""'~ " " ...~Jhfu<2-1'.,' c..'. ',' .-.. V 1 everyone of those jobs, and you would have to do it on a 2 continuing basis for the next for the rest of Mr. 3 Thumma's life probably, if he continues to work there, at 4 least during his working life or the working life of the 5 corporation. 6 So that is why equity approves of the use of 7 the equity side of the court to obtain injunctive relief to 8 -- I lost the word. My vocabulary fails me. Anyway you 9 get the point. 10 THE COURT: Certainly. 11 MR. PURCELL: The last thing that I will 12 mention, Your Honor, is on the question -- I don't think 13 there -- I did some research on this. I drafted a brief. 14 I thought if the Court wanted a brief at some point I would 15 be happy to provide one, but I did do some research on it, 16 and I did not see any case law that said that you needed a 17 new contract of employment when the underlying entity of 18 the corporation changed with every single employee. 19 And on top of that the plaintiff came in and 20 testified that the corporation assumed all the rights and 21 obligations of the previous entity when it took over the 22 business. The business continued seemlessly along. I 23 think that's sufficient proof. There's nothing that 24 requires a written document assigning a right to a contract 25 from one entity to the other. 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I ~" I I~ ,c,'~ ~~~ !>l.a; ,Ii ~ r AliJliiti ''W;.jy..m.tii;~,~!li~,;: 40 (') 1 As the owner of the company, the sole owner 2 of the company, he certainly has a right to verbally say to 3 himself, if he had to, I hereby assign my rights to the -- 4 all the interest in this company to the corporation. He 5 doesn't need to have it in writing to make it effective. 6 So you don't need to do that, and he 7 testified that, in fact, that is what happened. The 8 corporation assumed all of his responsibilities. It's an informal process with himself, but that's how it works. I don't think there is any case law out there that says that we have to have a new contract every time you do this. What the case law does say is that you have to have a contract. It has to be supported by consideration. Either in the beginning of the employment you have to have consideration of the employment itself or if you've already started work, you have to have additional consideration. In this case the consideration was his employment. He started a job. He knew that it was a condition of his employment, and it states on the agreement itself that as a condition of his employment he needs to agree to this noncompete provision. It's the only thing he was ever asked to sign other than the federal forms or W-4's. So it obviously was important to the business, notwithstanding 71 ~ , -I ~ ~'I ~'" ~~~I~~~<<~~~~~' o o 1 what Mr. Preble, Sr., testified to. 2 It's binding. It's enforceable. I think 3 all of the requirements under the law have been met, and I 4 think an injunction -- at this point in time a temporary 5 injunction is appropriate. 6 THE COURT: All right. What I'll do is 7 take the matter under advisement. Before we adjourn, I 8 would be remiss if I did not note that there was an 9 outburst in the courtroom earlier, and I chose not to 10 exercise the powers that the Court has when such an event 11 occurs, but I would ask counsel to exercise their good 12 offices to be sure that when people leave the courtroom 13 today there are no incidents, and that no further incidents 14 occur of that sort. I realize the emotions run high and 15 it's difficult, but we can't conduct court in that 16 atmosphere. And we'll enter this order: 17 AND NOW, this 27th day of December, 2001, 18 upon consideration of Plaintiff's motion for temporary 19 injunctive relief, and following a hearing, the record is 20 declared closed, and the matter is taken under advisement. 21 (End of order.) 22 THE COURT: Very nicely presented by both 23 counsel. There's some interesting legal issues, and I'll 24 try to have an order entered within the next week or so. 25 MR. PURCELL: Thank you, Your Honor. 72 , 1 2 3 4 3 :48 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 " o 0 MR. MAKOWSKI: Thank you, Your Honor. THE COURT: Court is adjourned. (Whereupon, the proceedings concluded at 73 " -. "'''''''~'f~:iJ\*''^ -.,1.." "~_~ ;', "11"";: (g;;~~, 1:) o CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. ~~~ J. ~ Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. J~H1 Date z 9 . 2 GOL.. . 74 ~ll "HI IliJ s.!] " .lllll1I;n ',"f, "l'iiJ.J 6 Inl,~,~r:"i\l!l ~=, ~"' ~'^'<~~^ u ,',,~,,~. . p < '-,. "i,'",'" >,~-r'<, ''-&~a"I'~ ~""'''--~''~~~''~'''~~,;'''''''''r''''''-''"'- " . '" ~"'rrh~'TliTI~~i1it1'<"J or:: 02 FE8 ,,8 PH I: 13 Gill""> . ,.' t.; V:C::r,; ;"., ~ :( -]~U'l\P," / ..." _''-"', I . PENNSYL\!j\Nf/\ ~.1l!l!\'.. / ~ ~~~il\IlI!Ilm~~W1~ffill~'li)JlCW,~~~~~~ij~?1~l~,~~,,~J;1~'~