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HomeMy WebLinkAbout07-5736?J POST & SCHELL, P.C. By: John W. Domberger Attorney ID #69293 17 North Second Street, 12'h Floor Harrisburg, PA 17101 (717) 731-1970 j domberger(i?postschell. com LIBERTY EXCAVATORS, INC 4402 Gettysburg Road Camp Hill, Pennsylvania 17011, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. McElroy Contractors, LLC 406 Chestnut Street Columbia, PA 17512, and Lori A. McClane, individually 1415 Yorktowne Road Mechanicsburg, PA 17050, and Thomas McElroy, individually 420 Sawmill Road New Providence, PA 17560, Defendant. No.: & 7 - 5-7 3 ( C j,/; 1 f ?? CIVIL ACTION JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone No.: (717) 249-3166 or (800) 990-9108 CPH 392213v1 POST & SCHELL, P.C. By: John W. Dornberger Attorney ID #69293 17 North Second Street, 12th Floor Harrisburg, PA 17101 (717) 731-1970 j domb erger(&postschell. com LIBERTY EXCAVATORS, INC. 4402 Gettysburg Road Camp Hill, Pennsylvania 17011, Plaintiff, V. McElroy Contractors, LLC 406 Chestnut Street Columbia, PA 17512, and Lori A. McClane, individually 1415 Yorktowne Road Mechanicsburg, PA 17050, and Thomas McElroy, individually 420 Sawmill Road New Providence, PA 17560, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: (J ? - 57 3 GS J- `fer : CIVIL ACTION JURY TRIAL DEMANDED Defendant. COMPLAINT Plaintiff Liberty Excavators, Inc. ("Plaintiff' or "Liberty"), files this Complaint against McElroy Contractors, LLC. ("McElroy Contractors"), Lori A. McClane, individually, ("McClane"), and Thomas McElroy, individually, ("McElroy") as follows: THE PARTIES 1. Plaintiff Liberty Excavators, Inc. is a corporation organized and existing pursuant to the laws of the Commonwealth of Pennsylvania with its principal place of business located at 4402 Gettysburg Pike, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant McElroy Contractors, LLC, is a corporation organized and existing pursuant to the laws of the Commonwealth of Pennsylvania whose address and principal place of business is 406 Chestnut Street, Columbia, Lancaster County, Pennsylvania 17512. 3. Defendant Lori A. McClane is an adult individual residing at 1415 Yorktowne Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 4. Defendant Thomas McElroy is an adult individual residing at 420 Sawmill Road, New Providence, Lancaster County, Pennsylvania 17560. 5. Upon information and belief, McElroy Contractors is a contractor primarily engaged in site construction that regularly conducts business in this County. 6. Liberty is a contractor primarily engaged in site construction that regularly conducts business in and maintains office in this County. JURISDICTION AND VENUE 7. Jurisdiction is proper in this Court pursuant to 42 Pa.C.S. § 931(a) and venue is proper in this County pursuant to Pa. R. Civ. P. 2179(a)(2) because, upon information and belief, McElroy regularly conducts business in this County and pursuant to Pa. R. Civ. P. 2179(a)(3) and (a)(4), because McClane and McElroy entered into separate agreements as set forth below with Plaintiff in this County. -2- BACKGROUND 8. On or about May 5, 2005, Lori McClane was hired by Liberty as a Project Coordinator. 9. Upon hiring, Ms. McClane, on or about May 9, 2005, entered into a confidentiality agreement as part of her employment with Liberty, which provides in pertinent part: You agree to keep confidential all Confidential Materials and other information, which you may obtain, from the Company or from any of the Company's representatives. You agree to disclose the information contained in the Confidential Materials only to employees of the Company who need to know such information for the performance of their respective duties. A true, correct and complete copy of the Liberty/McClane confidentiality agreement (hereinafter "Liberty/McClane Confidentiality Agreement") is attached hereto as Exhibit "A". 10. On or about April 13, 2006, Thomas McElroy was hired by Liberty as a foreman. 11. Upon hiring, on or about April 12, 2006, Thomas L. McElroy entered into a confidentiality agreement as part of his employment with Liberty, which provides in pertinent part: You agree to keep confidential all Confidential Materials and other information, which you may obtain, from the Company or from any of the Company's representatives. You agree to disclose the information contained in the Confidential Materials only to employees of the Company who need to know such information for the performance of their respective duties. A true, correct and complete copy of the Liberty/McElroy confidentiality agreement (hereinafter "Liberty/McElroy Confidentiality Agreement") is attached hereto as Exhibit "B." 12. As part of her duties as a Project Coordinator for Liberty, on or about April 16, 2007, while in the course and scope of her employment at Liberty, McClane prepared a -3- proprietary, project management manual (hereinafter "Liberty Project Management's Procedure Manual") for use by Liberty's project management staff, including foremen, such as Thomas McElroy. 13. In her capacity as Project coordinator while employed at Liberty, McClane was entrusted with other proprietary materials of Liberty, including but not limited to Liberty's employee safety manual (hereinafter "Liberty Safety Manual") and a quality assurance manual (hereinafter "Liberty Quality Control Manual"). 14. As part of his duties as a foreman employed by Liberty, McElroy was entrusted with proprietary materials of Liberty, including but not limited to the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual. 15. The Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual are proprietary confidential materials owned by Liberty Excavators, Inc. 16. The Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual are "Confidential Materials" as defined by the Liberty/McClane confidentiality agreement and the Liberty/McElroy confidentiality agreement. 17. The information contained in the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual is valuable information to Liberty not known outside Liberty's business. 18. It is further believed and therefore averred that the contents of the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual could not easily be reproduced. -4- 19. The contents of the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual took Liberty time and money to develop. 20. On or about May 4, 2007, McClane resigned her employment with Liberty and thereafter, upon information and belief, became employed as an office/operations manager with McElroy Contractors. 21. On or about February 27, 2007, McElroy resigned his employment with Liberty and thereafter, upon information and belief, became employed by McElroy Contractors, a business owned by his brother James McElroy. 22. Upon information and belief, at all material times hereto following his employment with Liberty, Thomas McElroy had ownership interest in McElroy Contractors. 23. Upon information and belief, at or before resigning from Liberty, in direct violation of the terms of the McClane/Liberty confidentiality agreement, McClane removed from Liberty's offices and took with her a working copy or draft of the Liberty Project Management's Procedure Manual that she had been preparing as part of her duties at Liberty. 24. Upon information and belief, at or before resigning from Liberty, in direct violation of the terms of the McClane/Liberty confidentiality agreement, McClane removed from Liberty's offices and took with her copies of the Liberty Safety Manual and/or the Liberty Quality Control Manual. 25. Upon information and belief, once employed with McElroy Contractors, McClane provided McElroy Contractors with copies of the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and/or the Liberty Quality Control Manual. 26. Upon information and belief, at or before resigning from Liberty, in direct violation of the terms of the McClane/Liberty Confidentiality Agreement, McElroy removed -5- from Liberty's offices and took with him copies of the Liberty Safety Manual and/or the Liberty Quality Control Manual. 27. Upon information and belief, once employed with McElroy Contractors, McElroy provided McElroy Contractors with copies of the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and/or the Liberty Quality Control Manual. COUNT I - Breach of Contract Liberty Excavators, Inc. v. Lori McClave, Individually 28. The averments set forth in paragraphs 1 through 27 are incorporated herein as if set forth at length. 29. Under the terms of the Liberty/McClane Confidentiality Agreement, McClane was required to "keep confidential" all Liberty proprietary and confidential materials and other information she may have obtained from Liberty. See Exhibit "A." 30. McClane was further restrained from disclosing any information contained in such materials to only "employees of the Company who need to know such information for the performance of their respective duties," agreeing that: the confidentiality restrictions contained in this Letter Agreement are reasonable and necessary in order to protect the legitimate business interests of the Company and its shareholders and that any violation thereof is likely to cause the Company and its shareholders irreparable injury, which may not be adequately compensated for by an award of damages alone. See Exhibit "A." 31. McClane's actions of removing from Liberty's offices, upon her resignation, the working copy or draft of the Liberty Project Management's Procedure Manual she had been preparing as part of her duties at Liberty, are a breach of the Liberty/McClane Confidentiality Agreement. -6- 32. McClane's actions of removing from Liberty's offices, upon her resignation, the Liberty Safety Manual and/or the Liberty Quality Control Manual, are a breach of the Liberty/McClane Confidentiality Agreement. 33. McClane's actions of providing the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and/or the Liberty Quality Control Manual to McElroy Contractors are a breach of the Liberty/McClane Confidentiality Agreement. 34. As a direct and proximate result of this breach of contract, Liberty has and will likely to continue to suffer from substantial harm in the form of, among other things, the costs of investigating and prosecuting this action, the costs and expenses expended by Liberty in preparing the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual. WHEREFORE, Liberty respectfully requests that judgment be entered in its favor and against McClane on this Count, together with the following relief: (a) Compensatory damages in excess of $50,000; (b) Reimbursement of the attorneys' fees and costs Liberty has incurred in prosecuting this action; (c) An Order requiring McClane to return any and all originals or reproductions of confidential or proprietary materials of Liberty to Liberty; and (d) Such other relief as this Court deems appropriate. COUNT II - Breach of Contract Liberty Excavators, Inc. v. Thomas McElroy, Individually 35. The averments set forth in paragraphs 1 through 34 are incorporated herein as if set forth at length. -7- 36. Under the terms of the Liberty/McElroy Confidentiality Agreement, McElroy was required to "keep confidential" all Liberty proprietary and confidential materials and other information he may have obtained from Liberty. See Exhibit "B." 37. McElroy was further refrained from disclosing any information contained in such materials to only "employees of the Company who need to know such information for the performance of their respective duties," agreeing that: the confidentiality restrictions contained in this Letter Agreement are reasonable and necessary in order to protect the legitimate business interests of the Company and its shareholders and that any violation thereof is likely to cause the Company and its shareholders irreparable injury, which may not be adequately compensated for by an award of damages alone. See Exhibit "B." 38. McElroy's actions of removing from Liberty's offices, upon his resignation, the Liberty Safety Manual and/or the Liberty Quality Control Manual, are a breach of the Liberty/McElroy Confidentiality Agreement. 39. McElroy's actions of providing the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and/or the Liberty Quality Control Manual to McElroy Contractors are a breach of the Liberty/McElroy Confidentiality Agreement. 40. As a direct and proximate result of this breach of contract, Liberty has and will likely to continue to suffer from substantial harm in the form of, among other things, the costs of investigating and prosecuting this action, the costs and expenses expended by Liberty in preparing the Liberty Safety Manual and the Liberty Quality Control Manual. WHEREFORE, Liberty respectfully requests that judgment be entered in its favor and against McElroy on this Count, together with the following relief: (e) Compensatory damages in excess of $50,000; -8- (f) Reimbursement of the attorneys' fees and costs Liberty has incurred in prosecuting this action; (g) An Order requiring McElroy to return any and all originals or reproductions of confidential or proprietary materials of Liberty to Liberty; and (h) Such other relief as this Court deems appropriate. COUNT III - UNFAIR COMPETITION Libertv Excavators, Inc. v. McElroy Contractors, LLC, Lori McClave, Individually and Thomas McElroy, Individually (Infringement/Trade Secret) 41. The averments set forth in paragraphs 1 through 40 are incorporated herein as if set forth at length. 42. Liberty is a contractor primarily engaged in commercial and residential site construction. 43. McElroy Contractors is a site contractor primarily engaged in commercial and residential site construction. 44. It is believed and therefore averred that both companies are in competition with each other. 45. It is believed and therefore averred that McElroy Contractors used information included in, but not limited to, the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual, that were provided to McElroy Contractors by McClane and/or McElroy. 46. Upon information and belief, these materials included information regarding: Contract Review; Job Start-up; Pre-Construction Meetings and Checklists; Drawings and Specs; Submittals; Purchase Orders; Subcontracts; Requests for Information; -9- Documentation/Organization; Problem Invoices; Job Status; New Cost Code; Extra Work; Cost Report; Cost to Complete; Invoicing Procedures; Letter Writing; Close-Out Checklist; Quality Control; Job Photos; Payment/Delivery Receipts; Test Documentation; Incident Reports; Employment Applications; Employee Rights and Duties; Accident Investigations. 47. For example, upon information and belief, subsequent to hiring McClane and McElroy, McElroy Contractors has prepared a quality control manual which is virtually identical to the Liberty Quality Control Manual, by merely changing the name at the top of the documents from Liberty to McElroy. 48. Liberty has a property right in the aforementioned information and the actions of McElroy Contractors constitute misappropriation of the information for the commercial advantage of McElroy Contractors. 49. The aforementioned information comprises particular confidential information of the Plaintiff, not general confidential information of the trade as a whole. 50. The use of the aforementioned information is without Plaintiff's consent. 51. Upon information and belief, Defendants, by their acts alleged herein, have deliberately and deceitfully utilized confidential materials particular to Liberty, resulting in the disparagement of the distinctive quality of Liberty's workmanship. 52. As a result of Defendants' wrongful acts alleged herein, Plaintiff has and continues to be actually and irreparably harmed. WHEREFORE, Liberty respectfully requests that judgment be entered in its favor and against Defendants on this Count, together with the following relief: (i) Compensatory damages in excess of $50,000; (j) Reimbursement of the attorneys' fees and costs Liberty has incurred in prosecuting this action; -10- (k) An Order requiring McElroy to return any and all originals or reproductions of confidential or proprietary materials of Liberty to Liberty; and (1) Such other relief as this Court deems appropriate. POST & SCHELL, P.C. Jo W. Domberger, squire Atto ey ID #69293 17 North Second Street, 12th Floor Harrisburg, PA 17101 (717) 731-1970 E-Mail: jdombergerapostschell.com Attorney for Plaintiff, Liberty Excavators, Inc. Dated: October 1, 2007 -11- VERIFICATION 1, Lester L. Gouffer, Vice President, Liberty Excavators, Inc., do hereby swear and affirm that the facts and matters set forth in the Complaint are and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. In addition, I also do hereby swear and affirm that I am a duly authorized representative of Liberty Excavators, Inc. and am authorized to execute this Verification. DATE: )6-1- d7 _L16L., - Lester L. Gouffer Vice President Liberty Excavators, Inc. ,??x ?') ? - 4- A Liberty Excavators, Inc. Confidentiality Notice Dear In the course of your employment by Liberty Excavators, Inc., you will have access to the tecords of the Company and of other business entities doing business with the Company and various information and data (both written and oral) concerning the Company and other business entities doing business with the Company (collectively, the "Confidential Materials'). The Company must keep all such Confidential Materials confidential, and has obligated itself with other entities to do so. Therefore, as aicondition of your employment, the Company is requiring your agreement to the following terms becauge of the potential harm to the Company by disclosure of the Confidential Materials: 1. You agree to keep confidential all Confidential Materials and other information, which you may obtain, from the Company or from any of the Company's representatives. You agree to disclose the information contained in the Confidential Materials only to employees of the Company who need to know such information for the performance of their respective duties. 2. You agree that the confidentiality restrictions contained in this Letter Agreement are reasonable and necessary in order to protect the legitimate business interests of the Company hnd its shareholders and that any violation thereof is likely to cause the Company and its $hareholders irreparable injury, which may not be adequately compensated for by an award of damages alone. Sincerely, Libbrty Excavators The foregoing terms and conditions are agreed to this 6) /?ay of Z• Print Name r--x Liberty Excavators, Inc. Confidentiality Notice Dear cE(ro•z In the course of your employment by Liberty Excavators, Inc., you will have access to the records of the Company and of other business entities doing business with the Company and various information and data (both written and oral) concerning the Company and other business entities doing business with the Company (collectively, the "Confidential Materials'). The Company must keep all such Confidential Materials confidential, and has obligated itself with other entities to do so. Therefore, as a condition of your employment, the Company is requiring your agreement to the following terms because of the potential harm to the Company by disclosure of the Confidential Materials: 1. You agree to keep confidential all Confidential Materials and other information, which you may obtain, from the Company or from any of the Company's representatives. You agree to disclose the information contained in the Confidential Materials only to employees of the Company who need to know such information for the performance of their respective duties. 2. You agree that the confidentiality restrictions contained in this Letter Agreement are reasonable and necessary in order to protect the legitimate business interests of the Company and its shareholders and that any violation thereof is likely to cause the Company and its shareholders irreparable injury, which may not be adequately compensated for by an award of damages alone. Sincerely, Liberty Excavators The foregoing terms and conditions are agreed to this l Z day of 4&1'( , 2006 . -mac! Signature 7- o r- a J 4,-,- /Zl `e 1, Print Name r-? 4p ---1 A - cv V R 0- -%% Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 (717) 221-9500 shericoover@yahoo.com Attorney for Defendant Lori A. McClane LIBERTY EXCAVATORS, INC, 4402 Gettysburg Road Camp Hill, PA 17101 (717) 731-1970 Plaintiff V. McElroy Contractors, LLC 406 Chestnut Street Columbia, PA 17512, and Lori A. McClane, individually 1415 Yorktowne Road Mechanicsburg, PA 17055, and Thomas McElroy, individually 420 Sawmill Road New Providence, PA 17560, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Case No. 07-5736 Civil Term CIVIL ACTION JURY TRIAL DEMANDED PRAECIPE TO ENTER ATTORNEY APPEARANCE To the clerk: Kindly enter my appearance on behalf of the Defendant Lori A. McClane. su 'tted, Jeri tDCoover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 (717) 221-9500 /" -. ti CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire hereby certify that on this 2°d day of November, 2007, I caused the foregoing PRAECIPE TO ENTER ATTORNEY APPEARANCE to be served upon Plaintiffs counsel addressed as follows: John W. Dornberger, Esquire Post & Schell, P.C. 17 N. 2" d Street, I e Floor Harrisburg, PA 17101 t fS:eri D. Coover, Esquire ey I D 93285 4311 N. Sixth Street Harrisburg, PA 17110 = r i Ul Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 (717) 221-9500; (717) 221-9400 (Fax) shericoover d,yahoo.com Attorney for Defendant Lori McClane LIBERTY EXCAVATORS, INC., Plaintiff V. LORI MCCLANE, et.al. CIVIL ACTION AT LAW Case No. 07-5736 PRELIMINARY OBJECTIONS NOW COMES, Defendant Lori McClane, by and through her counsel, Sheri D. Coover, Esquire, and files preliminary objections to Plaintiffs complaint wherein the following is a statement: 1. On or around October 1, 2007, Plaintiff initiated the above action by filing a Complaint raising allegations of breach of contract and unfair competition (infringement/trade secrets) 2. Defendant McClane raises preliminary objections to Counts One and Three of Plaintiffs Complaint entitled "Count I - Breach of Contract" and "Count III - Unfair Competition." PRELEM NARY OBJECTION TO COUNT I - BREACH OF CONTRACTFOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE RULE 1028(a)(4). 3. In Count 1 of Plaintiffs Complaint, entitled "Count I - Breach of Contract," Plaintiff alleges that Defendant McClane breached a contract that she entered into with Plaintiff Liberty Excavators, Inc. by removing from Liberty's offices a working copy or draft of the Liberty A Project Management's Procedure Manual and providing that manual to Defendant McElroy Contractors. (Complaint ¶¶ 31 and 32). 4. The Plaintiff further avers that as a result of the alleged breach of contract, Plaintiff Liberty Excavators, Inc. has and are likely to continue to suffer from substantial harm in the form of investigating and prosecuting this action and expenses expended by Liberty in preparing the Liberty Project Management's Procedure Manual, the Liberty Safety Manual and the Liberty Quality Control Manual. (Complaint 134). 5. Under Pennsylvania law, three elements are necessary to plead to state a cause of action for breach of contract: 1) the existence of a contract, including its essential terms, 2) a breach of a duty imposed by the contract and 3) resultant damages. Corestates Bank, Nat'l Assn v. Cutillo, 723 A.2d 1053, 1057 (Pa.Super 1999) (quoting McMahon v. Shea, 688 A.2d 1179, 1181 (Pa. 1997). 6. The Plaintiffs complaint does not state how the alleged actions of Defendant McClane have in any way resulted in damages to the Plaintiff. Further, the damages stated by the Plaintiff against Defendant McClane are not actual resultant damages identified under Pennsylvania law. Therefore, since the Plaintiff has not stated a claim upon which relief has been granted against Defendant McClane for breach of contract, this court should enter a demurrer to Count I of Plaintiffs complaint and dismiss this claim against the Plaintiff with prejudice. WHEREFORE, Defendant McClave respectfully requests that this Court grant her demurrer and dismiss this claim against her with prejudice. PRELIMINARY OBJECTIONS TO COUNT III - UNFAIR COMPETITION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE RULE 1028(aK4). 7. The averments in paragraphs 1 through 6 herein are incorporated in their entirety. 8. In Count III of Plaintiffs Complaint, Plaintiff attempts to assert a claim against Defendant McClave for unfair competition (infringement/trade secrets). 9. Plaintiff alleges the Plaintiff is in competition with Defendant McElroy Contractors and that McElroy Contractors used information that was provided to them by Defendant McClave and Defendant McElroy without the Plaintiffs consent. (Complaint IM 44, 45 and 50). 10. A cause of action for misappropriation of trade secrets requires the Plaintiff to plead the following elements: "1) That there was a trade secret...; 2) that it was of value to employer [owner] and important in the conduct of his business; 3) that by reason of discovery of ownership the employer had the right to the use and enjoyment of the secret; and 4) that the secret was communicated to the employee while he was in the position of trust and confidence and under such circumstances to make it inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer." A.M. Skier Agency, Inc. v Gold, 747 A.2d 936, 940 (Pa.Super.Ct)(citing Gruenwald v Advanced Computer Applications, Inc., 730 A.2d 1004, 1012-13 (Pa.Super.Ct. 1999)). 11. Although the Plaintiff alleges in paragraph 49 that the information contained in Plaintiffs Quality Control Manual was confidential, the Plaintiff has not alleged that this W information was a trade secret, the value of this trade secret to the Plaintiff or that the Plaintiff would by virtue have the excusive right to use and enjoy the trade secret. 12. Further, a person is not subject to liability for unfair competition, even if it results in harm to the commercial relations of another unless (a) the harm results from ...other acts or practices of the actor determined to be actionable as an unfair method of competition, taking into account the nature of the conduct and its likely effect on both the person seeking relief and the public;.... Rest. (Third) Unfair Competition § 1. 13. The Plaintiff has not plead any other action or practices of Defendant McClane that the Plaintiff determines to be actionable as an unfair method of competition. 14. Further, the Plaintiff claims that he continues to be actually and irreparably harmed as a result of the alleged unfair competition actions of Defendant McClane, but has not articulated exactly how the company has been harmed and how this claimed harmed is attributable to Defendant McClane. 15. The Plaintiff has failed to state a claim upon which relief can be granted for the claim of unfair competition (trade secrets) therefore demurrer under Pennsylvania Rule of Civil Procedure Rule 1028(a)(4) is appropriate. WHEREFORE, Defendant McClane respectfully requests that this Court grant her demurrer and dismiss this claim against her with prejudice. w PRELPAMARY OBJECTION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE RULE 18T.8(al(3I. 16. The averments of paragraphs 1 through 15 are incorporated herein in their entirety. 17. The Complaint is not sufficiently clear as to the allegations of the damages that were sustained by the Plaintiff or how these damages are attributable to any alleged actions of Defendant McClave. 18. The allegations against Defendant McClave are unclear and ambiguous to the extent that it does not grant the Defendant the appropriate opportunity to form a defense as to the claims that have been brought against her. 19. In the event that the Court rules against Defendant McClave on her previous preliminary objections, Plaintiff respectfully requests that this Court find that there is insufficient specificity in the Complaint filed by the Plaintiff pursuant to Pennsylvania Rule of Civil Procedure Rule 1028(a)(3) to sustain a cause of action against Defendant McClave. WHEREFORE, Defendant McClave respectfully requests that this Court grant her preliminary objection for insufficiency specificity of the pleading under Pennsylvania Rule of Civil Procedure Rule 1028(ax3) and to enter an appropriate Order accordingly. R su 'tted, eri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 w CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire hereby certify that on this day of November, 2007, I caused the foregoing PRELIMINARY OBJECTIONS to be served upon Plaintiffs counsel via United States First Class mail addressed as follows: John Dornberger, Esquire Post & Schell, P.C. 17 North Second Street, 121h Floor Harrisburg, PA 17101 R7*D. ly s miffed, S o over, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 1711 ? ?? ?_.. ?:-? ? Ca .?.? ? 1 G.My "C ?? _ N _ ? t", ' 'Y %t?i a ? ' -_ T + . '? ?: SHERIFF'S RETURN - REGULAR CASE NO: 2007-05736 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LIBERTY EXCAVATORS INC VS MCELROY CONTRACTORS LLC ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MCCLANE LORI A the DEFENDANT , at 1740:00 HOURS, on the 8th day of October , 2007 at 1415 YORKTOWNE ROAD MECHANICSBURG, PA 17050 by handing to VANCE SCHEIBERT, SON, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge !1J©q/07 6.00 11.52 .00 10.00 .00 27.52 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 11/07/2007 POST & SCHELL By: /y"?, q /bep ty Sh 7?1 A.D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05736 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND . T.TT:1PPTV WYOA17ATnPP TNTO VS MCELROY CONTRACTORS LLC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: MCELROY CONTRACTORS LLC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER serve the within COMPLAINT & NOTICE County, Pennsylvania, to On November 7th , 2007 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Lancaster Co 87.78 Postage 2.57 127.35 ? 11/07/2007 POST & SCHELL So answers R' Thomas Kline Sheriff of Cumberland County 7 Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05736 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND . T =V=IJ LTV ('+TT7T T/'1DC TNT!" VS MCELROY CONTRACTORS LLC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT MCELROY THOMAS to wit: but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LANCASTER serve the within COMPLAINT & NOTICE County, Pennsylvania, to On November 7th , 2007 , this office was in receipt of t attached return from LANCASTER Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 ? 11/07/2007 POST & SCHELL So answer5_:- R Thomas Kline Sheriff of Cumberland County /I/# q 1P ? 4^ Sworn and subscribe to before me this day of A. D. I1 OF 2 SHERIFF'S OFFICE SHERIFF SERVICE PLEASE TYPE OR PRINT LEGIBLY. PROCESS RECEIPT, and AFFIDAVIT OF RETURN DO NOT DETACH ANY COPIES. 1 PLAINTIFF/S/ M I NUMOCR -5736 civil 3 DEFENDANT/S/ 4 TYPE OF WRIT OR GOMPLAINI McElroy Contractors LLC et al Notice and Ccmplaint SERVE 5 NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC.. TO BE SERVED McElroy Contractors LLC 6 ADDRESS (Street or RFD, Apartment No.. City, Boro, Twp., State and ZIP Code) AT 406 Chestnut Street Columbia, PA 17512 7 INDICATE UNUSUAL SERVICE: DEPUTIZE ? OTHER Now, c o er 20 I, SHERIFF OF COUNTY, PA., do hereby deputize the Sheriff of Lancaster County to execute this Writ a n thereof ac to law. This deputation being made at the request and risk of the plaintiff. SHERIFF eSIN00=R COUNi 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: CL nberland Please mail return of service to Cunberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER 11 DATE JOHN W. DORNBERGER ESO 717-731-197n loji /07 - 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) CUMBERLAND COUNTY SHERIFF COURTHOUSE SO CARLISLE PA. 17013 SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13.1 acknowledge receipt of the writ t NAME of Authorized LCSO Deputy or Clerk 14. Date Received 15 Expiration/Hearing date or complaint as indicated above. I JA C KI 16. 1 hereby CERTIFY and RETURN that 111 have personally served, ave legal evidence of service as shown in "Remarks", ? have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc , at the address shown above or on the individual, company, cor- poration, etc., at the address inserted below by handing a TRUE and ATTESTED COPY thereof. 17. O 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 18. Name and title of individual) NY, (if not shown above) (Relationship to Defendant) 19. ? No Service R ta\j me t IJ p G: i? M, L-,- . 0 tit krnf Ill Lam- See Remarks Below (No. 30) 20 Address of where served (complete only if different than shown above) (Street or RFD, Apartment No . City, Boro, Twp . 21 Date of Service 22 Time State and Zip Code) l ? -2z 3 , ?- ?? 23. ATTEMPTS D to Miles Dep. In Date Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. ?;d 24. Advance Costs 25. Service Costs 26. Notary Cert. 27 Mileage/Postage/N.F. 28 Total Costs 29. COST DUE OR REFUND F 3U.HtMAHKS S.T.A. 31. AFFIRMED and subscribed to before me this 34. day of 37 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 a (717) 299-8200 Liberty Excavators Inc Prothonotary/Deputy/Notary Public 71 33 Date Lo " 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Offs 4. BLUE -Sheriffs=Office w.y .. r td *100 *ONVI :ld2O ,w 41UHS O : i I WV b- iJO LOQZ `I 2 OF 2 SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 a (717) 299-8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1 PLAINTIFF Liberty Excavators Inc 07-5736 civil 3 DEFENDANT/S/ 4 IYPE OF WHII UFi GUMYLAINI McElroy Contractors LLC et al Notice and Complaint SERVE 5 NAME OF INDIVIDUAL. COMPANY, CORPORATION. ETC, TO BE SERVED Thomas McElroy 6 ADDRESS (Street or RFD, Apartment No.. City, Boro, Twp., State and ZIP Code) AT 420 Sawmill Road New Providence, PA 17560 7. INDICATE UNUSUAL SERVICE: DEPUTIZE ? OTHER Cumberland Now, (7ntn} tar 4 20 07 , I, SHERIFF OF COUNTY, PA., do herebyeputize the S r" of Lancaster County to execute this Writ eturn thereo ,in to law. This deputation being made at the request and risk of the plaintiff. Cumberland Please mail return of service to Cumberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER 11. DATE JOHN W. DORNBERGER, ESQ 717-731-1970 10/1/07 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13 1 acknowledge receipt of thewrit2 NAME of Authorized LCSO Deputy or Clerk 14. Date Received 15 Expiration/Hearing date or complaint as indicated above. I JACKIE MICCICHE 717-390-2309 l 10/8/07 10/31/07 16. 1 hereby CERTIFY and RETURN that I ? have personally served, ? have legal evidence of service as shown in "Remarks", ? have executed as shown in .,Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, cor- ?p yation, etc., at the address inserted below by handing a TRUE and ATTESTED COPY the,eot. 17. hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 18. Name and title of individual served (if not shown above) (Relationship to Defendant) 19, CJ No Service See Remarks Below (No. 30) 20. Address of where served (complete only if different than shown above) (Street orRFD, Apartment No , City, Boro, Twp 21 Date of Service 22 Time Stale and Zip Code) AAfM EST EOST 23. ATTEMPTS Oso as Dep. Int. Date as Dop. In t. Dste as Dop. In t. bate Miles Dep. In t. Date Miles Dep. In t. 24. Advance Costs 25. Service Costs 26 Notary Cert. 27. Mileage/Posta I--,(?p 1 1 e/N.F. _ 28. Total Costs g-?-?Z. 29 COST DUE OR REFUND S1,ZZ R 30. REMARKS: S.T.A.: 31. AFFIRMED and subscribed to before me this 32. Si nature of 34. day of 20 Dep. S?er I, 35 Signature of Shen 37. Prothonotary/Deputy/Notary Public MY COMMISSION EXPIRES PLEASE TYPE OR PRINT LEGIBLY. DO NOT DETACH ANY COPIES. 2 COURT NUMBER 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriffs Office r s OHV l_0 `?1 lea ?-1J0 L?Dl , 3 A1T"'