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HomeMy WebLinkAbout99-03090r;, ''V'( ,;, `:%`r ,;,: ,;; '«? ": ?;x ?, a?, ,,. J? ",' `.%: -? <:: :::;, ?? °;?:? ,??? ?, '';! ;a? ?;; ;« ;'sr ': :, ?? ?.i `i_?i!l i ,+?;? ",ii; "`,'6i I.; ;mirk ??F $:. i. .l 4:A ,:.: "$i. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA r HIGH EMPLOYEE SERVICES, LTD., PLAINTIFF V. No. 99- 369o 0 cc'`f l -.- MICHAEL A. MARTIN AND APPLEONE EMPLOYMENT SERVICES, DEFENDANTS. NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER TH1S COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIM SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED AGAINST YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE 4`h FLOOR CARLISLE, PA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff, V. No. 94. 30 4o 0r,d,-Fa _ MICHAEL A. MARTIN AND APPLEONE EMPLOYMENT SERVICES, Defendants. COMPLAINT 1. Plaintiff High Employee Services, Ltd. ("High") is a Pennsylvania corporation, with a principal place of business at 1837 William Penn Way, Lancaster, Lancaster County, Pennsylvania 17601-5892. 2. Defendant Michael A. Martin ("Martin") is the former branch manager of High's Lemoyne office located in Cumberland County, Pennsylvania, at 301 Market Street. Martin is an adult individual residing at 924 Shiremont Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Upon information and belief, Defendant ApplcOne Employment Services ("AppleOne") is a California corporation, with a principal place of business at 327 West Broadway, Glendale, California 91204, and transacting business in Cumberland County, at 125 Gateway Drive, Mechanicsburg, Pennsylvania 17055. AppleOne is engaged in the business of providing staffing services. 4. High is a full-service staffing and employee management company that, among other things, assists businesses in locating individuals to fill temporary, "temporary to hire" and permanent employment positions. High does business in Adams, Chester, Cumberland, Dauphin, Lancaster, Lebanon, Perry and York Counties. 5. Martin was hired by High on June 2, 1996 to work at its Lemoyne office. 6. As a condition of his employment with High, Martin executed a covenant not to compete which provides that after the termination of such employment he: . will not, either directly or indirectly, be engaged as agent, servant, consultant, or employee of any entity in competition with HIGH EMPLOYEE SERVICES, LTD, for a period of twelve (12) months in any County or similar subdivision in which they do business. A copy of Martin's covenant not to compete is attached hereto as Exhibit A and incorporated herein by reference. Martin started out at High as an account coordinator. As such, Martin was responsible for responding to hiring requests from High's clients (employers seeking temporary or permanent employees) by interviewing and placing associates (persons seeking employment) in appropriate positions. In July of 1997, Martin became a salesperson for the Lemoyne office. As a salesperson, Martin was responsible for following leads provided by High through appointments, "cold calls," on-site job visits, and preparation of company proposals. Martin was also permitted to pursue contacts he made on his own. 9. Continuing at the Lemoyne office, in April of 1998, Martin took on the dual role of branch manager and salesperson. 10. Therefore, in addition to his responsibilities as a salesperson, Martin became responsible for the day to day operation of the Lemoyne office. 11. As part of his employment with High, Martin obtained confidential trade secret information belonging to High, including information on: customer accounts and reports which contain, among other things, the names, contacts, addresses, and phone numbers of High's customers, as well as whether customers' accounts are in active, semi- active, or inactive status, when they last did business with High, their seasonal needs, hours year to date, pay rates and billing rates; customer leads, contacts and referrals, and reassignments of former and current accounts; and financial and budgeting information. 12. Martin voluntarily resigned from High on or about February 1, 1999, and his last day of work was February 9, 1999. 13. In his exit interview, Martin informed High that he was going to work for a family member in the restaurant franchise business. 14. However, immediately or soon after leaving High, Martin started working for AppleOne (a competitor of High) in Cumberland County and in other counties where High operates, in clear violation of his covenant not to compete with High. 15. Indeed, soon after Martin started with AppleOne, High learned from one of its clients located in Dauphin County that Martin visited their company and solicited business from them as an AppleOne employee, in an attempt to divert their business away from High to AppleOne. 16. High also discovered that Martin has been communicating with another client of High located in Dauphin County, and has placed a temporary employee for AppleOne with this client. 17. Upon learning about Marlin's activities in violation of his covenant not to compete, High's attorneys sent a letter to Martin dated April 21, 1999, demanding that he cease all activity in violation of his covenant to compete. A copy of the April 21, 1999 letter is attached hereto as Exhibit B, and is incorporated herein by reference. 18. High's attorneys sent copies of the April 21, 1999 letter to AppleOne's branch office in Mechanicsburg, its regional office in Georgia and its headquarters in Oakland, California. 19. However, Martin has refused to comply with his covenant not to compete, and AppleOne has not responded to the April 21, 1999 letter. 20. Upon information and belief, AppleOne has encouraged Martin to violate his covenant not to compete with High. 21. While Martin was still in the employ of High, upon information and belief, Martin conspired with AppleOne to wrongfully convert High records and to secretly divert High customers to AppleOne. 22. While Martin was still in the employ of High, upon information and belief, Martin prepared to engage in, is engaging in, and plans to continue to engage in, among other things, the following acts: (a) Removal of original, copies or computerized High documents and information and conversion of the information contained in confidential High business records, specifically including, but not limited to, the names, contacts, addresses, phone numbers, and/or other confidential information about High customers and their accounts with High; (b) Transmitting verbally, in writing, or in any other manner to AppleOne and/or others customers' names, contacts, addresses, phone numbers and other information contained in the records of High as described in sub-paragraph (a); (c) Soliciting High customers to terminate their relationship with High and transfer their business to AppIcOne; and (d) Other such acts contrary to the terms and conditions of his covenant not to compete. 23. Defendants' conduct was and is in furtherance of a scheme to obtain and to convert to their personal use and gain High's records, property, confidential customer information, trade secrets, marketing and promotional techniques, and the goodwill generated, directly or indirectly, by Martin's association with High, and to do so by means of, among other things, solicitation of customers of High whose names became known to Martin because of his employment with High. 24. Upon information and belief, High avers: (a) Defendants have possession or control of High original and/or copied and/or computerized records, High documents, confidential customer information, proprietary information, trade secrets, and lists of High customer accounts: (b) Defendants have used, and will continue to use, confidential customer information to solicit High accounts to divert the business of High customers from High to AppleOne; (c) Martin will otherwise continue to engage in acts constituting breach of his covenant not to compete; a breach of his fiduciary duty; and other tortious conduct, including conversion of trade secrets and unfair competition; and (d) AppleOne will otherwise continue to engage in acts constituting unfair competition, and intentional interference with contractual relations. COUNT 1: HIGH v. MARTIN BREACH OF COVENANT NOT TO COMPETE 25. The averments of paragraphs 1-24 are incorporated herein by reference as if fully set forth. 26. At the outset of his employment with High, Martin entered into a covenant not to compete with High, attached as Exhibit A. 27. Martin has violated his covenant not to compete with High. 28. Martin is continuing to violate his contractual obligations under his covenant not to compete. 29. As a consequence of the foregoing, High has suffered and will continue to suffer financial loss, COUNT II: HIGH v. MARTIN MISAPPROPRIATION OF TRADE SECRETS 30. The averment of paragraphs 1-29 are incorporated herein by reference as if fully set forth. 31. High maintains secret administrative, financial and budgetary reports as well as secret customer lists and reports. 32. The confidentiality of this information is of critical importance and value to High. 33. All of this trade secret information belongs to High. 34. High took reasonable steps and precautions to guard this trade secret information by requiring Martin to sign a covenant not to compete as a condition of his employment. 6 35. Martin learned about High's trade secrets while employed in a position of trust and confidence. 36. Defendants' conduct as outlined above constitutes misappropriation of High proprietary information and trade secrets. 37. As a consequence of Defendants' conduct, High has suffered and will continue to suffer financial loss. COUNT III: HIGH v. MARTIN BREACH OF FIDUCIARY DUTY 38. The averments of paragraphs 1-37 are incorporated herein by reference as if fully set forth, 39. Martin has violated the common law fiduciary duties of loyalty and confidentiality lie owed to High arising under his employment with High in that, while employed by High, Martin secretly planned to leave the employ of High and schemed with AppleOne and/others to solicit High's customers, and to deprive High of the confidentiality of its records and trade secrets. 40. Martin has violated the common law fiduciary duties of loyalty and confidentiality he owes to High arising under his employment with High in that he continues to use the goodwill and confidential information fie obtained from his association and employment with High to solicit High customers in an attempt to divert business from High to AppleOne. 41. Such misconduct by Martin was wanton, willful and with reckless disregard for the legal rights of High. 7 42. As a consequence of the conduct, High has suffered and will continue to suffer financial loss. COUNT IV: HIGH v. MARTIN AND APPLEONE UNFAIR COMPETITION 43. The averments of paragraphs 1-42 are incorporated herein by reference as if fully set forth. 44. The foregoing conduct of Defendants constitutes an unfair method of competition. 45. Such misconduct by Defendants was wanton, willful and with reckless disregard for the legal rights of High. 46. As a consequence of the foregoing, High has suffered and will continue to suffer financial loss. COUNT V: HIGH v. APPLEONE INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 47. The averments of paragraphs 1-46 are incorporated herein by reference as if fully set forth. 48. At the outset of his employment with High, Martin entered into a covenant not to compete with High, attached as Exhibit A. 49. AppleOne has intentionally caused and continues to cause harm to High by encouraging Martin's violation of his covenant not to compete with High. 50. AppleOne's conduct constitutes interference with Martin's covenant not to compete with High. 51. AppleOne has no privilege or justification for such interference. 8 52. Such misconduct by ApplcOne was wanton, willful and with reckless disregard for the legal rights of High. 53. As a consequence of the foregoing, High has suffered and will continue to suffer financial loss. WHEREFORE, by virtue of the foregoing acts complained of in Counts I, II, III, IV and V, Plaintiff High Employee Services, Ltd. respectfully requests money damages against both Defendants in the amount proven at trial; punitive damages against both Defendants; that a Preliminary Injunction Order issue immediately until trial, and that thereafter a Permanent Injunction Order issue, enjoining Defendants Michael A, Martin and AppleOne Employment Services, directly or indirectly, and whether alone or in concert with others, including any officer, agent, employee and/or representative of Defendants, from unlawfully competing with Plaintiff, and any other relief that the Court may deem appropriate. KEGEL KELIN ALMY & GRIMM LLP By: Howard L. Kelin Attorney I.D. No. 65124 Kathleen A. Wolowski Attorney I.D. No. 78104 24 N. Lime Street Lancaster, PA 17602 (717) 392-1100 7124.1 1202 MAY 20, 1999 TEL N0: 717-399-2248 #1833 PAGE: 11/11 VERIFICATION 1. Shirl Bortzfield, veriA, that the facts set forth in the foregoing Complaint are tnte and correct to Ilie best of my knowledge, infunnation and belief. This Verification is mado subject to the pcnallics of B Pa.C.S § 4904, relating to uosvvorn falsification to authorities. Skirl Bortzfield, ations Manager lo '-1 HIGH ?=MpLoyr=rz SERVICES, LTD, EMPLOYMENT AGREEMENT In consideration for being employed by HIGH EMPLOYEE SERVICES, LTD., I agree that: r. In the event of termination of employment: by either party for,any reason, I agree that I will. not, either directly or indirectly, be engaged as agent, servant, consultant, or employee of any entity in;competition with HIGH EMPLOYEE SERVICES, LTD. or EMPLOYEE MANAGEMENT SERVICES, LTD. for a period of twelve (12) months in any county or similar subdivision in which they do business. If HIGH EMPLOYEE SERVICES, LTD. seeks the enforce- ment through judicial process, then the time period shall be tolled during such process. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this AGREEMENT the day and year so shorn. HIGH EMPLOYEE SERVICES, LTD. John/ Filakesident Date 4 P7( /` ---_ 1837 William Penn Way.l.ancaster, PA 17601.5892 (717) 396.7701 FAX (717) 396-7779 Datc ?? "s KEGEL KELIN ALMY & GRIMM LLP TELEPHONE: (717) 392-1100 24 NORTH LIME STREET PAX: (717) 392-4355 LANCASTER. PENNSYLVANIA 17602-2913 E-MAIL: KKAG@V.KAGLAW.COM TF,LECOPIER TRANSMITTAL COVER SHEET DATE: A12ril11.1999 TIME: 11:59AM TO: Michael A. Martin FAX #: 691-0443 FROM. Eric N. Athev TOTAL NUMBER OFPAGES, INCLUDING COVER SHEET. 4 COMMENTS: Mr. Martin: The attached letter was mailed to von yesterday. Due to the urgency of this matter. I had my secretary confirm that you were at AppleOne's Mechanicsburg location today so that the letter could be axed to you directly. IF YO U DO NOT RECEIVE ALL PAGES AS INDICATED, PLEASE CALL (717) 391-1100 Original will not follow: Original will follow by: x mail overnight courier hand delivery The information in this telefacsintile message is privileged and confidential, intended only for the use of the individual or entity noned above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If this communication has been received in error, please notify its immediately by telephone (call its collect, if necessary), and return the original message to its at the above address via the U.S. mail (we will reimburse postage). Thank you. KEGEL KELIN ALINW & GRIJ1N1 LLP 24 North Limo Street Lancaster, Pennsylvania 17602.2913 TEL 717.3921100 FAX 717 392 4385 kkag®kkaglaw.com ERIC N. ATHEY E-Xt.ut.:athey@kkagla?v.com April 21, 1999 Michael A. Martin 924 Shiremont Drive Mechanicsburg, PA 17055 Re: High Employee Services. Ltd. v. Martin Dear Mr. Martin: This firm represents your former employer, High Employee Services, Ltd ("HESL"). As you may recall, you signed an Employment Agreement when you were hired by HESL in which you agreed to certain restrictions on future employment (copy attached). Specifically, you agreed that you would not "either directly or indirectly, be engaged as agent, servant, consultant, or employee of any entity in competition with High Employee Services, Ltd. or Employee Management Services, Ltd. for a period of twelve (12) months in any County or similar subdivision in which they do business." HESL recently confirmed that you have, in fact, breached the Agreement by obtaining employment with AppleOne Employment Services in Cumberland County (Mechanicsburg) and by soliciting at least several HESL customers as an AppleOne employee. The Company is currently investigating the extent to which you have solicited its customers and the amount of damages it has incurred to date. HESL's customer base is of critical importance to the Company and I have been instructed to take any necessary legal action to ensure that you are held accountable for your breach and to prevent any further breach. We demand that you immediately cease any and all direct or indirect contact with HESL customers consistent with the terms of the Agreement and return any HESL customer lists and related information (and all copies) that you have apparently taken with you. Likewise, we demand that you immediately cease competing with HESL in Cumberland County or any other county in which HESL does business. In the next several days, we will be filing suit against you seeking damages and injunctive relief for breach of the Agreement and violation of state and federal laws regarding disclosure of trade secrets and unfair competition. We are also notifying your current employer of your agreement with HESI., for they too may be liable for unfair competition and interference with contractual relations. With this in mind, we strongly suggest that you immediately discuss this letter with your employer and your personal attorney. Until HESL has received full recompense for all damages resulting from your breach and written assurance from you and your new employer that the terms of the Agreement will be honored, we have no choice but to proceed with the suit against you and AppleOne. Michael A. Martin April 21, 1999 o Page 2 To assure prompt delivery, we have mailed this letter to your last known residential address and to your current work address. If you have any questions regarding this letter, please do not hesitate to call me. Very Emily yours, - -----? Eric N. Athey ENA Enclosure cc: AppleOne Employment Services/Mechanicsburg (w/enc.) AppleOne Employment Services/Oakland (w/enc.) AppleOne Employment Services/Georgia (w/enc.) 7 ? Y 4 } C\ i- uj .. 1L tit :?.J h MAY 21 1999 IN THE, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff, V. No. qq- 3090 Civ;I 'arm MICHAEL A. MARTIN AND APPLEONE EMPLOYMENT SERVICES Defendants. ORDER NOW, this day of May, 1999, upon consideration of the Petitio for Ex Parte Pr iminary Injunction by Plaintiff High Employee Services Ltd. ("H' "),and the Courthavin determined that there is a reasonable basis to believe th C fu I. Defe ant Michael A. Martin ("Martin") has violate is covenant not to compete with High thro It his employment with Defendant A eOne Employment Services ("AppleOne"), whe by Defendants have obtain and converted to their personal use High's records, prop y, confidential stomer information, trade secrets, marketing and promotional technique and thr oodwill generated, directly or indirectly, by Martin's association with High, and done so by means of, among other things, solicitation of customers of High w ose names came known to Martin because of his employment with High; and at 2. Unless efendants are immediately enjoin from converting and misappropriatin igh's property to their own use and from s 'citing High's clients to do busine with AppleOne, High will continue to suffer immediate nd irreparable harm, wh' i cannot be compensated by damages, including, but not limited to. t? ?s:,?r ?'r,?? ?`?: '•?m, y,/, •? „ s r ? ?9 c? ., a (a) disclosure of trade secrets, customer lists, and other confi ntial inform tion that is solely the property of High and its customers; (b loss of confidentiality of customers' records, loss confidence and trust of stomers, loss of goodwill, and loss of business putation; (c) 1 s of personnel, damage to office stabili , and a threat to the enforcement of rea nable contracts; (d) present onomic loss, which is un certainable at this time, and future economic loss, whi in presently incal lable; THE COURT HEREBY FIN THAT: Z 1. High will suffer inimedia an rreparable injury if the Defendants are permitted to continue to engage in such un vfill activities; 2. High has demonstrated ikelih d of success on the merits and that a balancing of the equities favors the suance of an i 'unction against Defendants; greater injury will occur from refusing t e injunction than fro granting it; 3. An injunction vill maintain the parties to t status quo as it currently exists; 4. The zasonably ngfulness of Defendants' conduct is main st, and the requested injunctive relief is suited to abate it; 5. igh's right to relief is clear; and 6. High does not have an adequate remedy at law; and therefor I IS HEREBY ORDERED AND DECREED: 1. An ex parse preliminary injunction shall be issued, and hereby is i ucd p ding a hearing at the time and place listed below, as follows: 2 Martin is enjoined and restrained from, either directly or indirectly, and wheth alone or in concert with others, including any agent and/or representative f Martin, from being engaged as an agent, servant, consultant, or employee of any ntity, including AppleOne, in competition with High for a period of twelve (12 months from the date of issue of this injunction in any County or similar subdi ision in which High does business; r (b) AppleOne i enjoined and restrained fro/na indirectly, and whether alone in concert with others, ier, e of AppleOne, froartin to agent, employee and/or represen tiv violate his covenant not to compete; 4 ?G (c) Defendants are enjoins business from any customer of High ? known to Martin while in the employ business or account transfers from soliciting any served or whose name became and further, from accepting any said c tomers whom Martin has solicited at any time in the past and purpose of d'kng business with AppleOne; (d) /records are further enjoined and restrai d from using, disclosing, or transmittise, including solicitation of said cu omers, the information contained f High, including, but not limited to co 6dential customer lists and report hat all original records and copies and/or ther reproductions ere , in whatever form, be returned to High immediately; Only the nominal amount of will be required as bo d because the sought to be enjoined are unlawful and will not interfere with the Defenda ts' lawful 3 business ac injunction; and no damage conceivably could result from the issuance of a};*Wninary 3. This injuncN Court specifically orders otht 4. Service of the sufficient by facsimile and D order shall remain in full force • effect until such time as the wise, ?C G ;omplain elated pleadings in this action shall be deemed ral Express to Ma on behalf of both Defendants; 5. Hi s granted leave to commence discove ediately in aid of the prelimi injunction proceedings before the Court; and 6. A hearing on High's application for preliminary injunction shall be, and is hereby, fixed for the a? yday of May, 1999 at X30 i P.M in Courtroom S of the Cumberland County Courthouse. BY' 7210.1 4 IN ]'HE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff, V. No. % 9- 369o ?t?r?PT MICHAEL A. MARTIN AND APPLEONE EMPLOYMENT SERVICES, Defendants. PETITION FOR EX PARTF, PRELIMINARY INJUNCTION 1. Plaintiff High Employee Services, Ltd. ("High") respectfully petitions this Court for an immediate Preliminary Injunction pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure. 2. High filed a Complaint concurrent with this Petition for Preliminary Injunction setting forth five counts: breach of covenant not to compete; misappropriation of trade secrets; breach of fiduciary duty; unfair competition; and intentional interference with contractual relations. 3. High is a Pennsylvania corporation, with a principal place of business at 1837 William Penn Way, Lancaster, Lancaster County, Pennsylvania 17601-5892. (See, Affidavit of Shirl Bortzfield ("Bortzfield"), 13, attached hereto as Exhibit 1 and incorporated herein by reference.). 4. High is a full-service staffing and employee management company that, among other things, assists businesses in locating individuals to fill temporary, "temporary to hire" and permanent employment positions. High does business in Adams, Chester, Cumberland, Dauphin, Lancaster, Lebanon, Perry and York Counties. (Bortzfield Affidavit, 114). 5. Defendant Michael A. Martin ("Martin") is the former branch manager of High's Lemoyne office located in Cumberland County, Pennsylvania, at 301 Market Street. (Bortzfield Affidavit, 115). 6. Defendant AppleOne Employment Services ("AppleOne") is a California corporation, with a principal place of business at 327 West Broadway, Glendale, California 91204, and transacting business in Cumberland County, at 125 Gateway Drive, Mechanicsburg, Pennsylvania 17055. (Bortzfield Affidavit, 16). AppleOne is engaged in the business of providing staffing services. High and AppleOne are competitors. (Bortzfield Affidavit, 117). 8. Martin was hired by High on June 2, 1996 to work at its Lemoyne office. (Bortzfield Affidavit, ¶8). 9. As a condition of his employment with High, Martin executed a covenant not to compete which provides that after the termination of such employment he: . will not, either directly or indirectly, be engaged as agent, servant, consultant, or employee of any entity in competition with HIGH EMPLOYEE SERVICES, LTD. for a period of twelve (12) months in any County or similar subdivision in which they do business. (Bortzfield Affidavit, ¶9). A copy of Martin's covenant not to compete is attached to the Complaint as Exhibit A and inrorporated herein by reference. 10. Martin started out at High as an account coordinator. As such, Martin was responsible for responding to hiring requests from High's clients (employers seeking temporary or permanent employees) by interviewing and placing associates (persons seeking employment) in appropriate positions. (Bortzfield Affidavit, 11]0). 11. In July of 1997, Martin became a salesperson for the Lemoyne office. As a salesperson, Martin was responsible for following leads provided by High through appointments, "cold calls," on-site job visits, and preparation of company proposals. Martin was also permitted to pursue contacts lie made on his own. (Bortzfield Affidavit, ¶11). 12. Continuing at the Lemoyne office, in April of 1998, Martin took on the dual role of branch manager and salesperson. (Bortzfield Affidavit, 112). 13. Therefore, in addition to his responsibilities as a salesperson, Martin became responsible for the day to day operation of the Lemoyne office. (Bortzfield Affidavit, ¶13). 14. As part of his employment with High, Martin obtained confidential trade secret information belonging to High, including information on: customer accounts and reports which contain, among other things, the names, contacts, addresses, and phone numbers of High's customers, as well as whether customers' accounts are in active, semi- active, or inactive status, when they last did business with High, their seasonal needs, hours year to date, pay rates and billing rates; customer leads, contacts and referrals, and reassignments of former and current accounts; and financial and budgeting information. (Bortzfield Affidavit, 1114). 15. Martin voluntarily resigned from High on or about January 29, 1999, and his last day of work was February 9, 1999. (Bortzfield Affidavit, 115). 16. In his exit interview, Martin informed High that he was going to work for a family member in the restaurant franchise business. (Bortzfield Affidavit, 116). 17. However, immediately or soon after leaving High, Martin started working for AppleOne in Cumberland County and in other counties where High operates, in clear violation of his covenant not to compete with High. (Bortzfield Affidavit, 1117). 18. Indeed, soon after Martin started with AppleOne, High learned from one of its clients located in Dauphin County that Martin visited their company and solicited business from them as an AppleOne employee, in an attempt to divert their business away from High to AppleOne. (Bortzfield Affidavit, ¶ 18; see also, Affidavit of Devon Hassett attached hereto as Exhibit 2 and incorporated herein by reference.). 19. High also discovered that Martin has been communicating with another client of High located in Dauphin County, and has placed a temporary employee for AppleOne with this client. (Bortzfield Affidavit, 119). 20. Because of this placement, Martin, on behalf of AppleOne has regular contact with one of High's customers. (Bortzfield Affidavit, 120). 21. Upon learning about Martin's activities in violation of his covenant not to compete, High's attorneys sent a letter to Martin dated April 21, 1999, demanding that he cease all activity in violation of his covenant to compete. (Bortzfield Affidavit, ¶21). A copy of the April 21, 1999 letter is attached to the Complaint as Exhibit B, and is incorporated herein by reference. 22. High's attorneys sent copies of the April 21, 1999 letter to AppleOne's branch office in Mechanicsburg, its regional office in Georgia and its headquarters in Oakland, California. (Bortzfield Affidavit, 1122). 23. However, Martin has refused to comply with his covenant not to compete, and AppleOnc has not responded to the April 21, 1999 letter. (Bortzfield Affidavit, 1123). 4 24. AppleOne has encouraged Martin to violate his covenant not to compete with High. (Bortzfield Affidavit, 1124). 25. While Martin was still in the employ of High, Martin conspired with AppleOne to wrongfully convert High records and to secretly divert High customers to AppleOne. (Bortzfield Affidavit, ¶25). 26. While Martin was still in the employ of High, Martin prepared to engage in, is engaging in, and plans to continue to engage in, among other things, the following acts: (a) Removal of original, copies or computerized High documents and information and conversion of the information contained in confidential High business records, specifically including, but not limited to, the names, contacts, addresses, phone numbers, and/or other confidential information about High customers and their accounts with High; (b) Transmitting verbally, in writing, or in any other manner to AppleOne and/or others customers' names, contacts, addresses, phone numbers and other information contained in the records of High as described in sub-paragraph (a); (c) Soliciting High customers to terminate their relationship with High and transfer their business to AppleOne; and (d) Other such acts contrary to the terms and conditions of his covenant not to compete. (Bortzfield Affidavit, 1126). 27. Defendants' conduct was and is in furtherance of a scheme to obtain and to convert to their personal use and gain High's records, property, confidential customer infornation, trade secrets, marketing and promotional techniques, and the goodwill generated, directly or indirectly, by Martin's association with High, and to do so by means of, among other things, solicitation of customers of High whose names became known to Martin because of his employment with High. (Bortzfield Affidavit, 1127). 28. Upon information and belief, High avers: (a) Defendants have possession or control of High original and/or copied and/or computerized records, High documents, confidential customer information, proprietary information, trade secrets, and lists of High customer accounts: (b) Defendants have used, and will continue to use, confidential customer information to solicit High accounts to divert the business of High customers from High to AppleOne; (c) Martin will otherwise continue to engage in acts constituting breach of his covenant not to compete; a breach of his fiduciary duty; and other tortious conduct, including conversion of trade secrets and unfair competition; and (d) AppleOne will otherwise continue to engage in acts constituting unfair competition, and intentional interference with contractual relations. (Bortzfield Affidavit, ¶28). 29. Unless Defendants are immediately enjoined from converting and misappropriating High's property to their own use and from soliciting High's clients to do business with AppleOne, High will continue to suffer immediate and irreparable harm, which cannot be compensated by damages, including, but not limited to: (a) disclosure of trade secrets, customer lists, and other confidential information that is solely the property of High and its customers; (b) loss of confidentiality of customers' records, loss of confidence and trust of customers, loss of goodwill, and loss of business reputation; (c) loss of personnel, damage to office stability, and a threat to the enforcement of reasonable contracts; (d) present economic loss, which is unascertainable at this time, and future economic loss, which in presently incalculable. 30. By virtue of the foregoing, High has demonstrated a likelihood of success on the merits and that a balancing of the equities favors the issuance of an injunction against Defendants; greater injury will occur from refusing the injunction than from granting it. 31. An injunction will maintain the parties to the status quo as it currently exists. 32. The wrongfulness of Defendants' conduct is manifest, and the requested injunctive relief is reasonably suited to abate it. 33. High's right to relief is clear. 34. High does not have an adequate remedy at law. 35. If a bond is required, it should be a nominal amount because the activities sought to be enjoined are unlawful and will not interfere with the Defendants' lawful business activities, and no damage conceivably could result from the issuance of a preliminary injunction. WHEREFORE, Plaintiff High Employee Services, Ltd, respectfully requests that a Preliminary Injunction Order issue immediately until hearing as follows: 7 (1) enjoining Martin, either directly or indirectly, and whether alone or in concert with others, including any agent and/or representative of Martin, from being engaged as an agent, servant, consultant, or employee of any entity, including AppleOne, in competition with High for a period of twelve (12) months in any County or similar subdivision in which High does business; (2) enjoining AppleOne, either directly or indirectly, and whether alone or in concert with others, including any officer, agent, employee and/or representative of AppleOne, from encouraging Martin to violate his covenant not to compete; (3) enjoining Defendants from soliciting any business from any customer of High whom Martin served or whose name became known to Martin while in the employ of High; and further, from accepting any business or account transfers from any of said customers whom Martin has solicited at any time in the past for the purpose of doing business with AppelOne; (4) enjoining Defendants from using, disclosing, or transmitting for any purpose, including solicitation of said customers, the information contained in the records of High, including, but not limited to confidential customer lists and reports; and further, that all original records and copies and/or other reproductions thereof, in whatever form, be returned to High immediately; and 8 5 (5) any and all other such acts as this Court deems appropriate for injunctive relief, KEGEL KELIN ALMY & GRIMM LLP By: §:1 f Z?, Howard L. elin Attorney I.D. No. 65124 Kathleen A. Wolowski Attorney I.D. No. 78104 24 N. Lime Street Lancaster, PA 17602 (717) 392-1100 7186.1 9 i_, .:,?-Z t l 11:55 MAY 20, 1999 t TEL N0i 71"-399-2246 01631 PAGEc 2? i IN THE COURT OF C.'OMMoN PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA j IfIGH V%IPLOYEE SERVICES, LTD., PlaLttiff, No. MICHAEL A. MARTIN AND APPLEONE .'i EMPLOYMENT SERVICES, Defendants. , j AFFIDAVIT OF SHIRL BORTZFIELD j Shirl Bort7field, having been duly sworrstates as fbllows: 1. The statements in this Affidavit are true to the best ofmy knoAl ge, infi?rmation and belief. 2 1 make this Affidavit in suplort of the Petition for Ex Pane Preliminarv hljunction of Plaintiff High Employee Services, Ltd. ("High"). 3. I. Shirl 13ortzfield, am the Operations Manager of High which is a Pennsylvania corporation with a principal place of business at 1837 William Penn Way. Lancaster, Lancaster County, Pennsylvania. 4. High is a full-service stalling and employee management company that, among other Things. assists businesses in locating individuals to fill temporary, "temporary to hire" and pemtanent employment positions, High does business in Adams, Chester, Cumberland. Dauphin, Lancaster, Lebanon, Petry and York Colonies. `. Dafcndant Michacl A. Martin (• ;Martin") is tho former branch mnnagcr of High's Letuoyue office located in Cumberland County. Pennsylvania. at 301 Market Street. 11:55 M121' 20. 1999 7EI. N0: 71'7-399-2248 01631 PRX: 3r7 1 6. Dcfi ndant Apple0ne Eniployntent Services ("AppleOne" ), it California corporation with a principal place of business at 327 West Broadway, Glendale, Calilornia 91204, transacts business in Cumberland Comity, at 125 Gateway Drive, Mechanicsburg. Pennsylvania 17055, AppleOne is engaged in the business of staffing services. 7. High and AppleOne are competitors. S. Martin was hired by High on June 2, 1996 to work at its Lenioyme office. 9. As a condition of his employment with High, X-lartin executed a covenant not to compete which provides that afler the termination of such employment he: .. will not, either directly or indirectly, be engaged as agent, servant, consultant, or employee of any entity in competition with HIGH EMPLOYEE SERVICES, 1-11D. for a period oftwelve (12) months in any County or similar subdivision in which they do business. 10. Martin started out at High as all account coordinator. As such. Martin was responsible for responding to hiring requests Boni High's clients (employers seeking. temporary or permanent employees) by interviewing mid placing associates (persons seeking emplo;ment) in appropriate positions. 11. In July of 1997, Martin became a salesperson for the Lemoyne office. .4s a salesperson, Martin was responsible for following leads provided by High through appointments. "cold calls." on-site job visits, and preparation of company proposals. Martin was also permitted to pursue contacts he made on his own. 12. CouGnuing at the Lemk)y ne off ice, in April of 1998. Marlin look on the dual role of branch manager and salesperson. 13. Therefore, in addition to his responsibilities as a salesperson. Martin became responsible for the day to day operation of the Lemoyne office. 2 11:55 MAY 20, 1999 TEL N0: 717-339-2240, #1931 PAGE: 4.,7 14. As part of bis entploytnent %vith High, Martin Obtained confidential trade secret intonnation belonging to High, includinc(lx inti>nnation on: customer accounts and reports which contain, among other things, the names, contacts, addresses, and phone numbers of High's customers, as well as cvhellter customers' accounts are in active, wmi- active, or inactive status, when they last did business with High, their seasonal needs. hours year to date, pay rates and billing rates; customer leads, contacts and referrals, and reassignments of former and current accounts: and financial and budgeting information. 15. Martin voluntarily nsicned lconr High on or about February 1, 1999, and his last day of work was February 9. 1999. 16. In his exit interview. Martin informed High that he was going to work for a family member in the restaurant franchise business. 17. However, Itlunedlately or soon after leaving High. Martin started working for AppleOne in Cumberland Count), and in other counties tshera High operates. in clear violation of his covenant not to compete with High. 18. Indeed, soon after Martin started with AppleOne. High learned from one of its clients located in Dauphin County that Mal-tin visited their company and solicited business from them as an AppleOne employee, in an attempt to divert their business sway from High to AppleOne. 19. 1 also discovered that Martin has been communicating with another client o!'Hi-A IUC'aled in Dauphin County. and has placed a temporary employ,;: for AppleOne with this clicut. 20. Because of this placement. Martin, on behalfof,4ppleone has regular contact with one of ili-O's customers. 11:56 MAY 20, 1999 TEL t:0: 717-339-n le 41831 PAGE: 5/' 21. Upon learning about Martin's activities in violation of his covenant not to commie. High's attorneys sent a letter to Martin dated April 21, 1999. demanding that he cease all activity in violation ofhis covenant to compete. 22. High's attorneys sent copies of the April 21, 1999 letter to Applu0ne's branch office in Mechanicsburg, its regional office in Georgia and its headquarters in Oakland, Calilbrnia. 23. However, Martin bus refused to comply with his covenant not to compete, and AppleOme has not responded to the April 21, 1999 letter. 24. Upon information and belief. AppkeOne has encouraged Martin to violate his covenant not to compete with High. 25. Wile Nlartin was still in the enmploy of High. Upon information and belief, Martin conspired with AppleOne to m+rongfimlly convert High records and to secretly divert High customers to AppleOne, 26. NA hile Martin was still in the employ of High, upon information and belief. Martin prepared to engage in. is engaging in, and plans to continue to engage in, among other things, die following acts: (a) Removal of original, copies or computerized High documents and information and conversion of the information containW. in confidential High business records. specifically includine, but not limited to. the names, contacts, addresses, phone numbers, andr'm officr confidential infonration about High custommers and their accounts with Hiah. 4 11;`6 MAY 20 1999 7FL NO: 717-399-^2246 *1631 PAGE: 6/7 (b) Transmitting verbally, in tinting, or in any other manner to AppleOne and,'or others customers' names, contacts, addresses, phone numbers and other information contained in the records of High as described in subparagraph (a): (c) Soliciting High customers to terminate their relationship with High and transfer their business to AppleOne; and (d) Other such acts contrary to the terms and conditions of his covenant not to compete. 27. Upon information and belief. Defendants' conduct was and is in furtherance of a scheme to obtain and to convert to their personal use and gain High's records, property, confidential customer information, trade secrets, marketing and promotional techniques, and the goodwill generated, directly or indirectly. by Martin's association with High, and to do so by means of, among other things, solicitation of customers of High whose names became known to Martin because of his employment with High. 28. Upon infomtation and belief, High avers: (a) Defendants have possession or control of High original and/or copied and/or computerized records. High documents, confidential customer information, proprietary information, trade secrets, and lists of High customer accounts: (b) Defendants have used, and will continue to use, confidential customer information to solicit High accounts w divert Ilse business of High customers from High to ApplcOnc: 5 11:55 MAY 20, 1999 TEL N0: 717-399-2246 41631 PAGE: 7/7 (c) Martin will otherwise confinue to en-2age in acts constituting breach of his coweuant not to compete; a breach of his fiduciary duty; and other tortious conduct, including conversion of trade secrets and unfair competition; and (d) AppleOne will otherwise continue to engage in acts constituting unfair competition. and intentional interference with contractual relations. WHEREFORE, I respectfully request that High's Petition for Ex Parte Preliminary Injunction be granted in its entirety. ! &G? ? l'l J COMMONWEALTH OF PENNSYLVANIA ) ) ss COLtNTS' OF i o _ _ ) Sworn and subscribed before me this day of Iwisy. 1999, by Shirl liortzfield 5 Notan? Public Notarial Seal Tamara W. Engel, Notary Public East Lampeter Twp., Lancaster County 732x.1 My Commission Expires Dec. 26,209 Member, Pennsylvania Assodatlon of Notaries - 6 G N! `a k e C { Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff, V. No. MICHAEL A. MARTIN AND APPLEONE EMPLOYMENT SERVICES, Defendants. AFFIDAVIT OF DEVON HASSETT Devon Hassett, having been duly sworn, states as follows: 1. The statements in this Affidavit are true to the best of my knowledge, information and belief. 2. I, Devon Hassett, am the Office Manager for Vartan Enterprises, Inc. ("Vartan") which is located at 3601 Vartan Way, Harrisburg, Dauphin County, Pennsylvania. 3. Vartan is a client of Plaintiff High Employee Services, Ltd. ("High"), engaging High's Lemoyne office to fill temporary, "temporary to hire" and permanent employment needs. 4. For 1997 and 1998, Vartan's gross billing with High totaled approximately $460,000. 5. About six to eight weeks ago, Defendant Michael Martin ("Martin"), acting on behalf of Defendant AppleOne Employment Services ("AppleOne"), visited our office in an attempt to solicit Vartan's business. 6. Our office knows and is familiar with Martin because of his former association with High as the branch manager of the High Lemoyne office. . . 7, Martin did not advise me (or to my belief anyone at Varian) that he is subject to a noncompetition agreement with High. Devon Hassett COMMONWEALTH OF PENNSYLVANIA ) ) ss COUNTY OF ? ) Sworn and subscribed before me this 20{ day of May, 1999, by Devon Hassett. No 7231 t NOTARIAL SEAL ' l KAREN A. SCANLON, Notary Public City of Lancaster, Lancaster County My Commission Expires Dec. il, 1999 2 ,, . , HIGH EMPLOYEE SERVICES, LTD., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL A. MARTIN AND NO. 99-3090 CIVIL TERM APPLEONE EMPLOYMENT SERVICES, Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW, this day of MAY, 1999, the hearing on Plaintiff's application for preliminary injunction shall be and is hereby continued until June 3, 1999, at 8:30 a.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. Pending said hearing Defendant Michael A. Martin is enjoined from doing business with any client of Plaintiff. This temporary injunction to be effective upon the posting by Plaintiff of Bond in the amount of $500 with the Prothonotary. Howard L. Kelin, Esquire For the Plaintiff Frank P. Clark, Esquire For the Defendant :sld . . i .. ? .. .. , ' I . ?,_. _ i. ..?? ? 1G -'i i. '. , .?1?'j KEGEL KELIN ALMY & GRIMM LLP 24 North Lime Street Lancaster, Pennsylvania 17602.2913 TEL 7173921100 FAX 717 392A385 kkag®kkaglaw.com HOWARD L. KEL1N H-MAn_:kelln@kkaglaw,com June 15, 1999 The Honorable Edward E. Guido Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-3387 Re: High Employee Services, Inc. v. Martin, et al. - Docket No. 99-3090 Civil Term Dear Judge Guido: This follows up on the conference call you had with counsel on June 3, 1999. The parties have reached an agreement to resolve this dispute, as reflected in the enclosed fully-endorsed Stipulation. We are submitting the Stipulation, along with an Order that incorporates the terms of the settlement. The case will be dismissed with prejudice, each side to bear its own costs, with the Court retaining authority over the case solely for the purpose of enforcing the terms of settlement. We appreciate the Court's assistance in this matter. Sincerely, Howard L. Kelin HLK/kas:8003.1 Enclosure cc: Frank P. Clark, Esq. Charles Aghoian, Esq. JAMM SMmI DURKIN & CONNELLY LIP MAY 2 8 1999 May 28, 1999 BY FAX (717-240-6462) AND MESSENGER The Honorable Edward Guido Judge of the Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: High Employee Services v. Michael A. Martin et al. No. 99 - 3090 Civil Term Dear Judge Guido: In connection with this morning's conference in this matter, we wish to make it very clear that we regard this as a meritless action based upon an "agreement" which was and is without consideration and upon exaggerated and unfounded statements in the principal supporting affidavit, that of the plaintiff's employee Shirl Bortzfield. To refute that affidavit, we transmit herewith an affidavit from the plaintiff, Michael Martin, demonstrating why consideration is lacking and why Ms. Bortzfield is wrong. Very respectfully, JAMES, SMITH, DURKIN & CONNELLY LLP -? WwA Frank P. Clark :rld cc, by fax: Howard L. Kelin, Esquire I:1, 5119 AVI III ,N- 11IM0It ll10Wl-1.1'A 1,1; f1; 1,;.11 ILI(; M,1IRF':C. 1'.0 1108 W,I) III 161 If Y. PA 1 7053 ILI. nrsa3:1^tfo IAA ]R 133.'I'Ib 1111 I) 4JSUI.I: GAL LCIIA bAWIIEN-116011 CCI IIVI ,..^:.' IYAINUT 61. HANI11'JGUR ,. (%. t i 101 1/117;3&4];G PU:INISS B COAW 11CIAL LAW CNII. 1111CATION CM IIIIUgS' RIGHTS 1 fal[A11014 1 AW I MPI OYMJ NI L A IV I L'All . PLANNING F<Wl Y IAW QUIIAN(A LAW I ANI % LI`;I_ MJNICII'AL LAW NI At [11.1f 11tI11.1 61 LIAll ADWWN lRA11CIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff No. 99 - 3090 Civil Term V. MICHAEL A. MARTIN AND APPLEONE : EMPLOYMENT SERVICES, Defendants AFFIDAVIT OF MICHAEL A. MARTIN MICHAEL A. MARTIN, being first duly sworn, on his oath deposes and says that: L I make this affidavit to refute the most inaccurate of the plaintiff's accusations in this matter and, more specifically, those contained in certain of the paragraphs in the affidavit of Shirl Bortzfield dated May 20, 1999. 2. As to paragraph 9 of the Bortzfield affidavit, it is true that I executed a document containing the language quoted, but I did so for absolutely no consideration. The document was first presented to me on June 7, 1996, five days after I had begun work for High Employee Services on June 2, 1996. The document was in no sense a condition of my employment with High. Neither it nor any other noncompetition or nondisclosure had been mentioned to me during employment interviews or otherwise at or before the time I began work. 1 might also note that a copy of this document was never provided to me after I had signed it. 3. As to paragraph 17 of the Bortzfield affidavit. I categorically deny engaging in any acts in competition with High. 4. As to paragraph 18 of the Bortzfield affidavit, it is true that 1 contacted one of 1-ligh,s customers, Vartan Group, but only for placement of clerical and administrative employees, which is all my present employer, AppleOne, was interested in providing; High's placements at Varian were in an entirely different area, light industrial and construction labor, which AppleOne cannot, for insurance reasons, place. 5. As to paragraph 19 of the Bortzfield affidavit, AppleOne had contact with a High customer - but I did not. Specifically, Rileighs, Inc., of Harrisburg, which is also a longstanding AppleOne customer, called AppleOne seeking areceptionist. The call was turned over to another AppleOne employee who handled the placement entirely without my participation. I had no contact with Rileighs whatsoever before the placement was completed. 6. With respect to paragraph 25 the Bortzfield affidavit, I categorically deny engaging in any conversations or other behavior involving either the conversion of records or the diversion of customers. 7. With respect to paragraah 26, 27 and 28 of the Bortzfield affidavit, I deny the allegations, state that I have communicated nothing about High to my present employer or anyone connected with my present employer, and state that the only written material in my possession relating to High is an unopened box of printed sales seminar course materials. COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ? a kscripbelme this 28'h day of May. 1999. ? Fawn E. o $O:N Y PupBc in, Corrcrd qo • p 2009 MAY, -28' 991FR11 10:03 JAMES, SMITH , DURKIN & CONNELLY TEL:717 533 3280 P. 002 JAMS SMmi DUMN & CONNOLLY Il.P May 28 199D 111; NK AVM11: , IIUMMW'1QWN, Fn 17Wd MAILIN(A Af WIW0 : P.U. 190X "a BY FAX (717-240-6462) AND MESSENGER MtNShP1', PA 170:X! IhL, 717 Rna 0^.90 hA% 717 An 779;, The Honorable Edward Guido vouewrit MAL.COM e of the Court of Common Pleas Jud NANN1:iNOIgG GrrICE: g Cumberland County Courthouse I004 P? WAI.IJIJT 5I NAHRARUM, PA 11101 One Courthouse Square 1717) ^'n.4776 Carlisle, PA 17013 Re: High Fmnlovee Services v. Michael A. Martin et a! No. 99 - 3090 Civil Term Dear Judge Guido: In connection with this morning's conference in this matter, we wish to make it very clear that we regard this as a mcritless action based upon an "agreement" which was and is without consideration and upon exaggerated and unfounded statements in the principal supporting affidavit, that of the plaintiff s employee Shirl Bortzfield. To refute that affidavit, we transmit herewith an affidavit from the plaintiff, Michael Martin, demonstrating why consideration is lacking and why Ms. Bortzfield is wrong, Very respectfully. JAMMS, SMITH. DURKIN & CONNELLY LLP 4?,,L C WA Frank P. Clark :rld cc, by far.: Howard L. Kelin, Esquire 911 wm i CO%+F1[Rc1A. LAW CNIL UTIOATION C16WTGR: KIWI EWc.TICN UW R,1RICYMCNT LAW C:TAT PUINNINO FAMILY LAW INS' M'CC:AW yAM 1169 "ICIPM. IAN Ffu C:TAT: 'RAT L WATC APMMn I MATION MAY, -28' 99(FRI) 10,03 JAMES, SMITH , OURKIN & CONNELLY TEL:717 533 3280 P.003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYER SERVICES, LTD., V. Plaintiff No. 99 - 3090 Civil Term MICHAEL A. MAR"fIN AND APPLEONE : EMPLOYMENT SERVICES, Defendants AFFIDAVIT OF MICHAEL A. MARTIN MICHAEL A. MARTIN, being first duly sworn, on his oath deposes and says that: 1. I make this affidavit to refute the most inaccurate of the plaintiffs accusations in this matter and, more specifically, those contained in certain of the paragraphs in the affidavit of Shirl Bortzfield dated May 20, 1999. 2. As to paragraph 9 of the Bortzfield affidavit, it is true that T executed a document containing the language quoted, but I did so for absolutely no consideration. The document was first presented to me on June 7, 1996, five days after 1 had begun work for High Employee Services on June 2, 1996. The document was in no sense a condition of my employment with High. Neither it nor any other noncompetition or nondisclosure had been mentioned tome during employment interviews or otherwise at or before the time I began work. I might also note that a copy of this document was never provided to me after I had signed it. 3. As to paragraph 17 of the Bortzfield affidavit, I categorically deny engaging in any acts in competition with High. MAY. -28' 99(FRI) 10A4 JAMES, SMITH , UURKIN & UNNELLY TEL,717 533 3280 P. 004 4, As to paragraph 18 of the Burtzlield affidavit, it is tote that T contacted one of High's customers, Varran Group, but only for placement of clerical and administrative employees, which is all my present employer, ApplcOne, was interested in providing; High's plneements at Vartan were in an entirely different area, light industrial and construction labor, which AppleOne cannot, for insurance reasons, place. 5. As to paragraph 19 of the Aortztield affidavit, AppleOne had contact with a High customer- but I did not, Specifically, Rileighs, Tne., of Harrisburg, which is also it longstanding AppleOne customer, called AppleOne seeking a receptionist. The call was turned over to another AppleOne employee who handled the placement entirely without my participation, I had no contact with Rileighs whatsoever before the placement was completed. 6. With respect to paragraph 25 the Bortzfield affidavit, I categorically deny engaging in any conversations or other behavior involving either the conversion of records or the diversion of customers. 7. With respect to paragrpalt 26, 27 and 29 of the Bortzfield affidavit, I deny the allegations, state that t have communicated nothing about High to my present employer or anyone connected with my present employer, and state that the only written material in my possession relating to High is an unopened box of printed sales seminar course materials. COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN St scribed and sworn to before me this 2g'h day of May, 1999. Lary P is NOW&t Sill = ENV E txrrwN. Na ivy t'ubk rw. onw?+couxy _ pxm" on - roe A r. t• 20W MAY. -28' 99 (FRI) 10:03 JAMES, SMITH , DURKIN & CONNELLY TEL:717 533 3280 JAMES, SMITH, DURKIN & CONNELLY LLP FACSIMILE TRANSMITTAL SHL•LT Q PER YOUR REQUEST Q PLEASE REVIEW AND REPLY M NOR YOUR INFO The motedalt transmitted by ibis fecsimilt are sentby an attorney or his/her agent and are coasideied confidential turd me intended only for The use of the individual or entitywtmed. If die addressee is a client. dtese mnierWi may nlso be subject to applicable pcvileges. If die recipient of these matmiah is nor the nddmssee, be owam dmc any dissemination or copying of this coimhuaicadon is strictly prohibited. If you have irceived this conmhunlcation In error, please immediAtely notify us at (117) 533.3280 (collect) and =tam the transmitted maletitds to as of the nhove address via the US. postal service. We mill iaunbntse your toad uicurred in connections widi this erroneous traosmuissina and your recuma of these materials. This office win not accept service of legal papers via faesimile or a-mnil pursuant to Pa.R.C.P. 440(d)(1) [Service of Legal Papers Other than Original Process]. NOTES/COMMENTS: MAILING ADDRESS: P.O BOX 650 a HERSHEY, PA 17033 STREET ADDRESS: 134 SIPS AVE ?1-IUMMELSTOWN, PA 17036 • PHONE; 717.533.3280 EMAIL:INFO( JSDLEGAL.COM P. 001 REFERXNCE NUMBER, ill ANY% SENDER'S PHOND NUMBER, 717.533.3260 EXT.t1 RII, SENDER'S FAl NUMDERi Zlacg ve. HIGH EMPLOYEE SERVICES, LTD., Plaintiff V. MICHAEL A. MARTIN AND APPLEONE EMPLOYMENT SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3090 CIVIL TERM CIVIL ACTION - LAW fi ORDER OF COURT AND NOW, this ?6 & day of MAY, 1999, the hearing on Plaintiff's application for preliminary injunction shall be and is hereby continued until June 3, 1999, at 8:30 a.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. Pending said hearing Defendant Michael A. Martin is enjoined from doing business with any client of Plaintiff. This temporary injunction to be effective upon the posting by Plaintiff of Bond in the amount of $500 with the Prothonotary. Howard L. Kelin, Esquire For the Plaintiff Frank P. Clark, Esquire For the Defendant :sld ?' r?-,,i ?., i??i: r. ."?-i L ?.; I:1 ?Li??I???J I?L?'/i'. ?.?i ??l:iY JUN 1 6 1999 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff, V. No. 99-3090 Civil Term MICHAEL A. MARTIN and APPLEONE EMPLOYMENT SERVICES, Defendants. ORDER . Upon consideration of the attached Stipulation of Settlement signed by all the parties, which is entered of record with the Court, it is hereby ORDERED that this case is dismissed with prejudice, each side to bear its own costs, except that the Court shall retain authority over the case for the purpose of enforcing the terms of settlement in the attached Stipulation. Judge Edward E. Guido w P13,111 Stlt VAN !A ?J JUN 1 61999 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HIGH EMPLOYEE SERVICES, LTD., Plaintiff, V. No. 99-3090 Civil Term MICHAEL A. MARTIN and APPLEONE EMPLOYMENT SERVICES, Defendants. STIPULATION OF SETTLEMENT Plaintiff High Employee Services, Ltd. ("High"), its former employee Defendant Michael A. Martin ("Martin"), and Martin's current employer Defendant AppleOne Employment Services ("AppleOne"), wishing to settle their differences without further litigation and without any determination or admission of liability with respect to any party, and intending to be legally bound, hereby agree to the following terms: 1. Effective immediately, the noncompetition agreement attached as Exhibit A to the Complaint in this case is null and void. 2. Effective immediately through February 9, 2000, Martin shall not have any verbal or written contact with any of the High clients identified on the confidential client list attached to the letter dated June 8, 1999 from Howard L. Kelin (counsel for High) to Frank P. Clark (counsel for Martin). This confidential client list is referred to herein as the "High Client List." Martin and his counsel shall each retain one copy of the High Client List, and shall return their copies of the list to High's counsel immediately upon the expiration of this agreement. 4. Effective immediately through February 9, 2000, Martin shall not divulge to anyone, including anyone at AppleOne, any information about any client on the High Client List, the only exception being if any of those High clients contact Martin he may provide only the name and phone number of the client contact to a sales representative at AppleOne. Upon notice from Martin or High that AppleOne has solicited or is doing business with any High client from the High Client List, AppleOne shall take appropriate steps to ensure that Martin does not have any contact with that High client through February 9, 2000. 6. Furthermore, AppleOne shall not knowingly utilize trade secrets of High that may be in the possession of Martin, and Martin shall not knowingly provide trade secrets of High to AppleOne. The obligations in this paragraph shall survive beyond February 9, 2000, and are in addition to any legal rights of High to protect its trade secrets. 7. The parties release each other (including their officers, directors, employees and agents) from any claim, demand, action, cause of action, administrative action or liability based on any alleged misconduct or violation by Martin or AppleOne related to Martin's noncompetition agreement or based on any information known by the allegedly aggrieved party through the date of this Stipulation. 8. This Stipulation of Settlement and Release shall be binding on the parties and their successors and assigns. 9. This Stipulation of Settlement and Release may be executed in any number of counterparts, each of which shall be deemed to be original and all of which taken together shall constitute one and the same document. r 10. This Stipulation of Settlement and Release shall be entered of record with the Court. This case shall be dismissed with prejudice, each side to bear its own costs, except that the Court shall retain authority over the case for the purpose of enforcing the terms of settlement. The parties have signed below through their duly authorized representatives. HIGH EMPLOYEE SERVICES, LTD. *?= x q'):'< JohrJ. Filak, President ??/9 /91 Date: APPLEONE EMPLOYMENT SERVICES Michael Hoyle, CFO Michael A. Martin Date: Date: 3 ? 10. This,Stipulatiou of Settlement and Release shall be entered • ofrecordwititthe Court This case shah be dismissed with preJ'udice# each side to bear its o ? wn costs, except that the Court: shall 6W.n:authotity'0 - ver the case for the purpose of enforcing the terms ofsettlement The parties have signed'below through.their duly authorized representatives. HIGR EMPLOYEE SERVICES, LTD. John 7.•Filak, President Date: :•HOWROYD=WRiGHT'EMPLOYMENT AGENCY dba APPi;EONE EWL0y M1NT.SERWCES p .. .. Date: :BERNIE HO esident •.: ? : .;: ? .: • . Date: j Michael A. Martin 3 10. This Stipulation of Settlement and Release shall be entered of record with the Court. This case shall be dismissed with prejudice, each side to bear its own costs, except that the Court shall retain authority over the case for the purpose of enforcing the terms of settlement. The parties have signed below through their duly authorized representatives. HIGH EMPLOYEE SERVICES, LTD. John J. Filak, President APPLEONE EMPLOYMENT SERVICES Michael Hoyle, CFO ?c el A. Martin Date: Date: XLi._?., ?O ,1999 J"r' ?