HomeMy WebLinkAbout04-0693iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
POWER GOURMET CONCEPTS, INC.;
MORE THAN GOURMET, 1NC.,
CIVIL DIVISION
CaseNo.: CbM -
PETITION FOR ISSUANCE OF
SUBPOENA PURSUANT TO 42 PA.
C,S.A. § 5326
Filed on Behalf of:
POWER GOURMET CONCEPTS, INC.
and MORE THAN GOURMET, INC.
Counsel of Record for These Parties:
MICHAEL P. ROBIC II, ESQUIRE
Pa. I.D. No.: 75578
METZ LEWIS, LLC
11 Stanwix Street
18th Floor
Pittsburgh, PA 15222
Phone: (412) 918-1100
Fax: (412) 918-1199
1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
1N RE: )
) CIVIL DIVISION
POWER GOURMET CONCEPTS, INC.; )
MORE THAN GOURMET, INC., ) Case No.: l~)lq ~
PETITION FOR ISSUANCE OF A SUBPOENA
PURSUANT TO 42 PA. C.S.A. ~ 5326
AND NOW, comes Power Gourmet Concepts, Inc. ("Power Gourmet") and More Than
Gourmet, Inc. ("More Than Gourmet"), by and through their duly appointed counsel, and hereby
file this Petition for Issuance of a Subpoena Pursuant to 42 Pa. C.S.A. § 5326, and in support
thereof state as follows:
1. On or about the 4th day of June, 2003, Power Gourmet and More Than Gourmet
filed a lawsuit in the Court of Common Pleas of Summit County, Ohio, at Case No.: 2003-06-
3311 (the "Complaint").
2. The Defendants to the Complaint are Marlin Grimes ("Grimes") and Food
Technologies and Traditions, Inc. ("Food T&T"). A copy of the Complaint is attached hereto as
Exhibit "A". Both Grimes and Food T&T are alleged to reside or have a principal place of
business in Paxinos, Pennsylvania, but to have committed acts in Summit County, Ohio. See
Exhibit "A".
3. On or about October 21, 2003, the Honorable Judge Bond of the Court of
Common Pleas of Summit County, Ohio, issued an Order that the Records Custodian of Brown
Schultz Sheridan & Fritz ("Brown Schultz"), upon information and belief an accounting firm
located in Cumberland County, Pennsylvania, with an office at 210 Grandview Avenue, Camp
Hill, Pennsylvania 17011, has information relevant to this action. A copy of that Order is
attached hereto as Exhibit "B". Pursuant to the Court's Order, a commission was issued by the
Court for the deposition of the Records Custodian of Brown Schultz. See Exhibit "B".
4. Upon information and belief, Brown Schultz was responsible for the preparation
of income tax returns for Defendants Grimes and Food T&T for the years 1998 through 2003.
5. In response to Plaintiffs' discovery requests, Defendants produced only partial tax
information for the years 1998 through 2003. Plaintiffs, therefore, are seeking copies of the
complete tax returns from their accountants, Brown Schultz.
6. Pennsylvania law provides that a court of record in Pennsylvania may order a
person or company that is domiciled in the Commonwealth to give testimony or produce
documents in a matter pending in a tribunal outside of Pennsylvania. See 42 Pa. C.S.A. § 5326.
The order in question may be made upon the application of any interested person.
7. Pursuant to 42 Pa. C.S.A. § 5326, Power Gourmet and More Than Gourmet
respectfully move this Court for an Order directing that they be permitted to issue subpoenas
from the Court of Common Pleas of Cumberland County, Pennsylvania, for the deposition of
Brown Schultz Seridan & Fritz for the matter pending in Summit County, Ohio at Case No.:
2002-06-3311, including as part of the subpoena a request for the production of documents.
WHEREFORE, Power Gourmet Concepts, Inc. and More Than Gourmet, Inc.,
respectfully request that the Court issue an Order granting their request for the above-noted
Subpoena.
Respectfully requested,
METZ LEWIS LLC
By:
L P. O xC
Pa. I.D. No.: 75578
11 Stanwix Street
18th Floor
Pittsburgh, PA 15222
Phone: (412) 918-1100
Fax: (412) 918-1199
Counsel for:
POWER CONCEPTS, INC. and
MORE THAN GOURMET, INC.
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
POWER GOURMET CONCEPTS, INC.,
929 Home Avenue
Akron, Ohio 44310
MORE THAN GOURMET, INC.,
929 Home Avenue
Akron, Ohio 44310
Plaintiffs,
-VS-
MARLIN GRIMES,
Rural Route #1, Box 666
Paxinos, PA 17860
and
FOOD TRADITIONS &
TECHNOLOGIES, INC.
Rural Route #1, Box 666
Paxinos, PA 17860
and
John Doe #1
(name and address unknown)
and
John Doe #2
(name and address unknown)
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CASE NO.
JUDGE
COMPLAINT
Breach of Fiduciary Duty, Breach of Duty
of Loyalty and Good Faith, Breach of
Contract, Misappropriation of Trade
Secrets, Tortious Interference, Conversion,
Fraud, Negligent Misrepresentation, Civil
Conspiracy, Unjust Enrichment, Accounting
Jury Demand Endorsed Hereon
and )
)
John Doe #3 )
(name and address unknown) )
)
and )
)
John Doe #4 )
(name and address unknown) )
)
and )
)
John Doe #5 )
(name and address unknown) )
)
Defendants. )
Power Gourmet Concepts, Inc. (hereinafter "PGC"), and More Than Gourmet, Inc.
("MTG") states their Complaint against Marlin Grimes (hereinafter "Grimes") and Food
Traditions & Technologies, Inc. ("Food T&T"), as follows:
COUNT ONE
(Breach of Fiduciary Duty)
1. PGC is an Ohio corporation with its principal place of business located at 929
Home Avenue, Akron, Ohio 44310.
2. MTG is an Ohio corporation with its principal place of business located at 929
Home Avenue, Akron, Ohio 44310.
3. PGC is now a 100% owned subsidiary of MTG.
4. Defendant Grimes is an individual who, upon information and belief, is residing
at Rural Route #1, Box 666, Paxinos, PA 17860, who has committed acts in Summit County
Ohio, and has agreed by contract to be subjected to the jurisdiction of the courts of Summit
County, Ohio.
.-152761vl 2
5. Defendant Food T &T is a Pennsylvania- corporation, with its principal place of
business located at Rural Route #1, Box 666, Paxinos, PA 17860, which has committed acts in
Summit County Ohio.
Grimes is listed as the President of Food T&T with the Pennsylvania Department
of State.
7.
MTG is engaged in the product development, sales, distribution and marketing of
stock and sauces.
8. PGC was incorporated on June 10, 1998, to serve as a manufacturing and
production company primarily for MTG products.
9. The original shareholders of PGC were Brad Sacks, Michael Sacks and Harvey
Left and Bernard Leff.
10. Effective January 1, 1999, Grimes purchased a fifty percent (50%) ownership
interest in PGC and became a Director, shareholder and employee of PGC as of such date.
11. As a condition precedent to becoming a shareholder, Grimes signed a Close
Corporation Agreement as of January 1, 1999, a copy of which is attached to this Complaint as
"Exhibit "A" and incorporated herein.
12. At all times relevant hereto, PGC was in the business of custom processing food
products for customers.
13. During his employment and while a shareholder of PGC, Grimes had access to all
of PGC's trade secrets and proprietary information.
14. Grimes also had access to the trade secrets and proprietary information of certain
of PGC's clients, including but not limited to MTG's trade secrets and proprietary information.
.-152761vl 3
15. Specifically, Grimes often obtained the ingredients, processes and fommlas that
were used by PGC to produce food products for PGC customers.
16. Additionally, Grimes had access to additional trade secrets and proprietary
information of PGC and its customers (e.g., pricing, customer lists, supplier lists, fommlas,
processes, etc.).
17. Effective November 30, 2002, PGC redeemed and purchased back all of the
shares which Grimes owned in PGC pursuant to a Redemption Agreement signed by Grimes and
PGC, a copy of which is attached hereto as Exhibit "B" and incorporated herein.
18. Pursuant to such Redemption Agreement, PGC paid to Grimes the down payment
of Twenty Thousand Dollars ($20,000) on November 30, 2002. PGC has also issued a
Promissory Note to Grimes in the amount of One Hundred One Thousand Thirty Eight and
50/100 Dollars ($101,038.50) for the remainder of the purchase price for the shares in PGC
redeemed fi.om Grimes under the Redemption Agreement. PGC has made the first payment on
such note, due on March 31, 2003, in the amount of $5,656.47. Grimes has accepted the
promissory note and cashed the checks for the down payment and the first payment on the note.
Grimes resigned as an officer, director and employee, effective as of November
19.
30,2002.
20.
PGC, at Grimes' request, re-hired Grimes as an employee in December of 2002
to assist PGC in its production operations and assist PGC in the move from its business
operations from its then existing location.
21. Grimes' last day of employment with PGC was May 16, 2003.
· - 15276tvl 4
22. PGC recently discovered that, while a shareholder, officer, director and employee
of PGC, Grimes utilized PGC's resources and those of the customers of PGC, including but not
limited to MTG, for his own personal gain to the detriment of PGC and its customers.
For example, Grimes was running his own business, Food T&T, out of PGC's
23.
facilities.
24.
Grimes used PGC's equipment and personnel, along with PGC's trade secrets and
proprietary information (and that of PGC's customers), for his own personal benefit and the
benefit of own business, Food T&T.
25. Additionally, Grimes was producing products for PGC's customers, without the
knowledge, involvement or authorization of PGC, for his own personal gain.
26. Upon information and belief, Grimes was also disclosing proprietary information
and trade secrets of PGC to customers of PGC and others for Grimes own personal benefit.
27. Grimes used PGC's equipment, telephones, computers, supplies, inventory, mail
and postage meter, and he developed customers' samples from PGC's inventory and with PGC
proprietary information and trade secrets, all to further his own personal interests and the
interests of Food T&T.
28. Recently, Grimes utilized PGC's credit to place at least one order (if not more) for
Food T&T, indicating that Food T&T was an affiliate of PGC.
29. Grimes also induced PGC to enter into a lease for a plant that Grimes claimed
PGC needed to expand its business operations.
30. Based upon Grimes' representations about PGC's needs, PGC agreed to lease the
facility at Rural Route #1, Box 305, Paxinos PA 17860 (the "Irish Valley Plant").
.- 152761 vi 5
31. Upon information and belief, Grimes and/or Food T&T was already operating at
the Irish Valley Plant prior to seeking approval from the PGC shareholders and directors and
deliberately deceived the PGC shareholders and directors as to the statos of operations at the
Irish Valley Plant.
32. While PGC occupied the Irish Valley Plant, Grimes used PGC funds to improve
the physical and mechanical facilities at the Irish Valley Plant.
33. Many of such improvements were done without prior approval of the other
shareholders and directors of PGC, in violation of the Close Corporation Agreement.
34. PGC did not need the Irish Valley Plant for its operations, as Grimes had
represented.
35. However, Grimes' motive for the lease of the Irish Valley Plant was to, at PGC's
expense, develop a plant location for his own personal use and for use by Food T&T.
36. The upgrades which were made by Grimes to the Irish Valley Plant did not
benefit PGC as represented by Grimes.
37. By way of example, Grimes, without the approval of PGC, purchased a boiler,
had it installed at the Irish Valley Plant and used PGC money to pay for such boiler.
38. The boiler which was purchased and installed was unnecessary for PGC's
operations at the Irish Valley Plant.
39. Grimes' representations, made to the PGC shareholders and directors concerning
in leasing the Irish Valley Plant and the improvements made therein, were deliberate
misrepresentations made with the intent to deceive such individuals in order to obtain a lease and
improved facility at the Irish Valley Plant for the benefit of Grimes and/or Food T&T.
.-152761vl 6
Acres.
40. Grimes also subleased a portion of the Irish Valley Plant to a third-party, Natural
41. However, upon information and belief, Grimes instructed Natural Acres to make
rental payment to his company, Food T&T, rather than PGC, even though Food T&T had no
leasehold interest in the premises leased.
42. Upon information and belief, Food T&T and/or Grimes improperly took PGC's
sublease payments from Natural Acres, which amounts were only turned over to PGC upon such
time as PGC questioned Natural Acres about its payment.
Grimes is also a part owner in another food processing plant in New Jersey.
Upon information and belief, such plant is also partially owned by Brian
43.
44.
Kingston.
45.
Upon information and belief, this New Jersey plant has been developed to be a
"stock" production facility.
46. Upon information and belief, this New Jersey plant is producing products for
PGC customers and/or producing products in direct competition with PGC.
47. Upon information and belief, Grimes has provided confidential and proprietary
information owned by or entrusted to PGC to Brian Kingston for use at the New Jersey plant.
48. Upon information and belief, Grimes or Food T&T, or both, have utilized and/or
are utilizing proprietary information, technology and trade secrets developed and owned by PGC
to service several customers of PGC including, but not limited to, Advanced Foods, D'Artagnan,
CF Chefs, Bullboy and Summerfield Farms, in connection with products in competition with
MTG.
.-152761vl 7
49. Upon information and belief, Grimes or Food T&T, or both, have utilized aod/or
are utilizing proprietary information, technology and trade secrets developed and owncd by PGC
to provide services or products and/or to solicit work from Williams Sonoma, in connection with
products in competition with MTG.
50. Upon further information and belief, Grimes or Food T&T, or both, have utilized
and/or are utilizing proprietary information, technology and trade secrets developed and owned
by PGC to perform services or produce products for several additional customers of PGC
including, but not limited to, Drohan, D'Artagnan and Hors D'oeuvres Unlimited.
51. PGC has knowledge that Grimes or Food T&T, or both, were providing to
D'Artagnan products, which had been previously produced for D'Artagnan by PGC, as early as
October or November of 2002.
52. PGC has knowledge that Grimes or Food T&T, or both, were providing to Drohan
products, which had been previously produced for Drohan by PGC, as early as October of 2002
53. Upon further information and belief, Grimes or Food T&T, or both, have
provided proprietary information, technology and trade secrets developed and owned by PGC to
PGC suppliers including, but not limited to, Wynn Starr Flavors and Ariake.
54. Upon further information and belief, Grimes or Food T&T, or both, have utilized
and/or are utilizing proprietary information, technology and trade secrets developed and owned
by PGC to solicit additional customers for the sole benefit of Grimes and Food T&T.
55. During the time that Grimes was a director, officer and shareholder of PGC, he
owed a fiduciary duty to each of the other shareholders and to the Company.
56. Grimes breached this duty by his actions and diverting business away from PGC;
misusing corporate assets for his personal gain and to the exclusion of other shareholders and
.-152761vl 8
PGC; misusing PGC's corporate assets to compete directly with PGC; misusing PGC's assets to
service PGC's customers for his own benefit; misusing PGC's credit for his own benefit; and
exploiting formulas and proprietary information owned by PGC and/or its customers and
utilizing such for his own benefit.
57. As a proximate result of Grimes' breaches of his fiduciary duty to PGC, PGC has
suffered and will continue to suffer damages.
COUNT TWO
(Breach of Duty of Loyalty and Good Faith - Grimes)
58. Plaintiff' reavers the above allegations in paragraphs 1 - 57 above as if fully
rewritten herein.
59. During the time that Grimes was an employee of PGC, he owed it a duty of
loyalty and good faith.
60. Grimes breached his duty by his actions and diverting business away from PGC;
misusing corporate assets for his personal gain and to the exclusion of other shareholders and
PGC; misusing PGC's corporate assets to compete directly with PGC; misusing PGC's assets to
service PGC's customers, for his own benefit; misusing PGC's credit for his own benefit; and
exploiting formulas and proprietary information owned by PGC and/or its customers and
utilizing such for his own benefit.
61. As a proximate result of Grimes' breach of his duty of good faith and loyalty to
PGC, PGC has suffered and will continue to suffer damages.
COUNT THREE
(Breach of Contract - Grimes)
.-152761vl 9
62. Plaintiffreavers the above allegations contained in paragraphs 1 through 61 as if
fully rewritten herein.
63. The Close Corporation Agreement contains non-competition and non-disclosure
provisions.
64. The Close Corporation Agreement's non-competition provisions state, in part:
"13. NON-COMPETITION The Shareholders shall not, at any time while
employed by, or a Shareholder of, the Corporation (other than in connection with the
performance of their duties for the Corporation), and for a period of two (2) years
after the termination of the Shareholder's employment or affiliation with the
Corporation, for any reason whatsoever, and for a period of two (2) years after the
transfer or sale of all of a Shareholder's Shares in the Corporation, for any reason,
within anywhere in the Un/ted States, associate in any capacity whatsoever, whether
as a promoter, owner, officer, director, employee, partner, lessee, lessor, lender,
agent, consultant, independent contractor, or otherwise, in any business engaged in
any line of business competitive with that conducted by the Corporation presently or
at any time while the Shareholder was a Shareholder or was employed or engaged
by the Corporation. The Shareholders acknowledge that the Corporation will be
irreparably injured if the provisions of this Sections 12 and 13 am not specifically
chromed. If the Shareholders fail to keep and perform every covenant of this
Sections 12 and 13, the Corporation may enforce the same by injunction in addition
to any other remedies that it may have and the Shareholder hereby consents to the
entry of a temporary restraining order or other equitable orders. The Shareholder
agrees to submit to the jurisdiction of the Summit County Court of Common Pleas.
If any portion of this Sections 12 or 13 shall be invalid or unenforceable, such
invalidity or unenforceability shall in no way affect the validity or enforceability of
any other portion of this paragraph. If any court in which the Corporation seeks to
have the provision of Sections 12 or 13 specifically enforced determines that the
time, geographic area or activities therein specified are unreasonably broad, the
Shareholders agree that such court may determine a reasonable time, geographic
area or activity and shall specifically enforce such provision as so modified."
65.
The Close Corporation Agreement's non-disclosure provision states:
"12. CONFIDENTIAL INFORMATION, COMPANY PROPERTY AND
TRADE SECRETS. The Shareholders recognize and acknowledge that the
Company has developed and continues to develop and use commercially valuable
proprietary technical and nontechnical information which is vital to the success of
the Company's business, and furthermore, that the Company utilizes trade secrets in
promoting and selling its products and services which are entitled to protection from
disclosure. The Shareholders shall hold in strict confidence and shall not disclose to
.-152761vl 10
any third party, except to authorized persons in the course of their employment with
the Company hereunder, any information of a confidential nature not generally
available to the public which becomes known to them in the course of their
employment with the Company or as a Shareholder of the Company relating to its
business operations or those of its affiliates or customers. The Shareholders, or their
personal representatives shall return to the Company all documents, catalogs,
brochures and all similar materials, along with all copies of such materials, upou the
occurrence of a transfer of all of such Shareholder's Shares in the Company,
whatever the reason for such transfer. The Shareholders also agree that they shall
return all Company property, including but not limited to credit cards, phone calling
cards and automobiles owned or leased by the Company, to the Company upon the
occurrence of a transfer of all of such Shareholder's Shares in the Company,
whatever the reason for such transfer."
66. Grimes has breached both his non-competition and non-disclosure provisions of
the Close Corporation Agreement.
67. Upon information and belief, Grimes or Food T&T, or both, have utilized and/or
are utilizing proprietary information, technology and trade secrets developed and owned by PGC
to service several customers of PGC in connection with products in competition with MTG.
68. Upon further information and belief, Grimes or Food T&T, or both, have utilized
and/or are utilizing proprietary information, technology and trade secrets developed and owned
by PGC to perform services or produce products for several additional customers of PGC who
are not in competition with MTG.
69. Upon further information and belief, Grimes or Food T&T, or both, have
provided proprietary information, technology and trade secrets developed and owned by PGC to
PGC suppliers.
70. Upon further information and belief, Grimes or Food T&T, or both, have utilized
and/or are utilizing proprietary information, technology and trade secrets developed and owned
by PGC to solicit additional customers for the sole benefit of Grimes and Food T&T.
.-152761vl 11
71. Grimes and/or Food T&T is using this information to develop and/or assist in the
production and/or developing products that compete with MTG's products, in violation of the
Close Corporation Agreement.
72. Grimes and/or Food T&T is using this information to develop and/or assist in the
production and/or developing products for customers of PGC, in violation of-the Close
Corporation Agreement
73. Grimes' actions as described herein, constitute breaches of his non-competition
and non-disclosure provisions of the Close Corporation Agreement.
74. As a result of Grimes' breaches of contract, PGC has suffered and will continue to
suffer damages as determined by this Court.
COUNT FOUR
(Misaoorooriation of Trade Secrets
- Grimes, Food T&T and John Doe #1 through #5)
75. Plaintiff reavers the allegations contained in paragraphs 1 through 74 as if fully
rewritten herein.
76. Since its inception, PGC has developed and maintained several trade secrets.
77. For example, PGC developed and maintained the following trade secrets:
a) Formulas for products produced by PGC customers;
b) Processing information relative to the production of products for PGC's
customers;
c) Supplier information relative to products produced by PGC for its
customers;
d) Pricing lists and information;
.-152761vi 12
e) Customer lists; and
Processing information and technologies.
78. During Grimes' employment and in his position as an officer and a shareholder of
PGC, Grimes came in contact and had access to each of the aforesaid trade secrets as well as
numerous other trade secrets of PGC.
79. Access to these trade secrets is limited only to officers of PGC and those
employees who need to know such information to perform their duties on behalf of PGC.
80. Furthermore, to ensure the safety of these trade secrets and to prevent their
dissemination, PGC binds all employees to confidentiality obligations concerning PGC trade
secrets, limits knowledge of trade secrets to those employees who need to know such trade
secrets in the performance of their employment obligations and has instructed employees to
make secure any trade secrets located on PGC's computer systems. Furthermore all PGC
employees are required to sign an Employee Handbook with detailed provisions regarding the
confidentiality of PGC trade secrets and proprietary information. A copy of such handbook is
attached as Exhibit "C" attached hereto and incorporated herein.
81. Grimes signed an "Employee Acknowledgement Form" acknowledging such
handbook and agreeing to be comply with the policies contained therein, a copy of which is
attached at Exhibit "D" to this Complaint and incorporated herein
82. However, despite all of PGC's efforts to maintain the secrecy of the preceding
trade secrets, Grimes has disclosed them and disseminated them to his company, Food T &T, to
John Doe #1 through John Doe #5, whose names and addresses are unknown at this time despite
reasonable efforts to determine the same, and to the public for his own gain and benefit.
.-152761vl 13
83. In fact, Grimes knoxvingly provided each of the aforesaid to Food T&T and, to
John Doe Itl through John Doe #5 for the express purpose of competing with PGC.
84. Food T&T and John Doe Itl through John Doe #5 knowingly accepted, used and
misappropriated PGC's trade secrets.
85. Additionally, upon information and belief, Grimes, Food T&T and/or John Doe
#1 through John Doe It5 have used and disclosed these trade secrets to third parties for their
benefit and for the benefit of Grimes, Food T&T and/or John Doe Itl through John Doe #5.
86. By their actions, Grimes, Food T&T and/or John Doe Itl through John Doe #5
have misappropriated PGC's trade secrets.
87. Grimes, Food T&T and/or John Doe Itl through John Doe //5 undertook these
actions with malice, recklessness, ill-will and intentionally to inflict damages upon PGC.
88. As a result of the misappropriations of PGC's trade secrets by Grimes, Food T&T
and/or John Doe Itl through John Doe ItS, PGC has suffered and will continue to suffer damages.
COUNT FIVE
(Misal~l~rol~riation of Trade Secrets -
Grimes, Food T&T and John Doe #1 throu£h John Doe It5)
89. Plaintiff reavers the allegations contained in paragraphs I through 88 as if fully
rewritten herein.
90. MTG is a customer of PGC and, since PGC's inception, MTG has entrusted PGC
with several trade secrets and with full and complete production of MTG products with no
alternative source for production.
91. For example, MTG has entrusted and provided to PGC the following trade
secrets:
.-152761vl 14
a)
b)
c)
d)
e)
Formulas for MTG products being produced by PGC for MTG;
Processing information relative to the production of MTG products;
Supplier information relative to products produced by PGC for MTG;
Pricing lists and information;
Customer lists; and
Processing information and technologies
92. During Grimes' employment and in his position as an officer and a shareholder of
PGC, Grimes came in contact and had access to each of the aforesaid trade secrets of MTG.
93. Access to these trade secrets is limited only to officers of MTG and PGC and
those employees of MTG and PGC who need to know such information to perform their duties
on behalfofMTG and PGC.
94. Furthermore, to ensure the safety of these trade secrets and to prevent their
dissemination, MTG binds all employees and contractors to confidentiality obligations
concerning MTG trade secrets, limits knowledge of trade secrets to those employees and
contractors who need to know such trade secrets in the performance of their employment
obligations or engagement by the Company and has instructed employees and contractors to
make secure any trade secrets located on MTG or contractor computer systems.
95. However, despite all of MTG's efforts to maintain the secrecy of the preceding
trade secrets, upon information and belief, Grimes has disclosed them and disseminated them to
his company, Food T &T, John Doe #1 through John Doe #5 and/or to the public for his own
gain and benefit.
.-152761vl 15
96. In fact, upon information and belief, Grimes has knowingly provided MTG trade
secrets to Food T&T and to John Doe gl through John Doe #5 fbr the express purpose of
competing with MTG.
97. Food T&T and John Doe gl through John Doe #5 knowingly accepted, used and
misappropriated MTG's trade secrets.
98. Additionally, upon information and belief, Grimes, Food T&T and/or John Doe
gl through John Doe #5 have used and disclosed these trade secrets to third parties for their
benefit and for the benefit of Grimes and Food T&T.
99. By their actions, Grimes, Food T&T and John Doe #1 through John Doe #5 have
misappropriated MTG's trade secrets.
100. Grimes, Food T&T and John Doe #1 through John Doe #5 undertook these
actions with malice, recklessness, ill-will and intentionally to inflict damages upon MTG.
101. As a result of the misappropriations of MTG's trade secrets by Grimes, Food
T&T and John Doe gl through John Doe #5, MTG has suffered and will continue to suffer
damages.
COUNT SlX
(Tortious Interference - Grimes and Food T&T)
102. Plaintiffreavers the allegations contained in paragraphs I through 101 above as if
fully rewritten herein.
103. During his employment with PGC, Grimes regularly had contact with PGC's
customers, including: D'Artagnan, Drohan, CF Chefs, Bullboy, Summerfield Farms, Hors
D'oeuvres Unlimited and Advanced Foods.
104. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with D'Artagnan.
105. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with Drohan.
106. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with CF Chefs.
107. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with Bullboy.
108. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with Summerfield Farms.
109. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with Hors D'oeuvres Unlimited.
110. Due to his position with PGC, Grimes had actual knowledge of PGC's business
relationship with Advanced Foods.
111. Nevertheless, Grimes used his position at PGC and his knowledge of PGC trade
secrets and proprietary information to cause the aforesaid customers of PGC to direct business
from PGC to other entities.
112. Food T&T, through Grimes, was aware of these business relationships and
actively participated in the scheme to interfere with them.
113. Grimes and Food T&T took these actions to benefit themselves and others to the
detriment of PGC.
· -15276Ivl 17
114. In fact, each of the aforesaid customers of PGC either reduced their orders with
PGC and/or placed their orders with Grimes, Food T&T or another entity at the direction and
with the help of Grimes.
115. Grimes and Food T&T tortiously interfered with PGC's business relations with
these customers.
116. As a proximate result of their actions, PGC has suffered and will continue to
suffer damages, including lost revenues.
117. These damages will continue unless and until Grimes and Food T&T are
restrained.
COUNT SEVEN
(Conversion - Grimes and Food T&T)
118. Plaintiff reavers the allegations contained in paragraphs 1 through 117 above as if
fully rewritten herein.
119. Grimes unlawfully removed tangible property from PGC without the knowledge
or authorization of PGC.
120. Grimes unlawfully converted PGC inventory and supplies and exerted dominion
and control over them for his personal uses and the uses of Food T&T.
121. Food T&T knowingly accepted the property Grimes had converted and put it to
its own use - all without the knowledge or authorization of PGC.
122. Grimes and Food T&T utilized PGC inventory and PGC facilities to produce
samples for third parties in order to induce them to purchase Food T&T products and/or services
from Grimes.
-152761vl 18
123. On May 8, 2003, Grimes requested to utilize the PGC compa~y credit card to
allegedly pick up supplies for PGC.
124.. This statement was false at the time it was made.
125. As of May 8, 2003, Grimes had already been infon~ed that his last day of
employment would be May 16, 2003.
126. On May 8, 2003, Grimes did use the PGC company credit card to purchase
$397.71 worth of goods and services for his own personal truck from Pep Boys automotive store.
127. The purchases by Grimes from Pep Boys were not authorized by PGC and were
made by Grimes for his own personal benefit, and not for the benefit of PGC.
128. Grimes and Food T&T, where applicable, took the aforesaid actions with malice,
recklessness, ill-will and intentionally to inflict injury upon PGC.
129. As a proximate result of the actions of Grimes and Food T&T, PGC has suffered
and will continue to suffer damages
COUNT EIGHT
(Fraud - Grimes)
130. Plaintiffreavers the allegations contained in paragraphs 1 through 129 above as if
fully rewritten herein.
131. Grimes induced PGC to enter into a lease for the Irish Valley Plant.
132. Based upon, and in reliance upon, Grimes' representations about PGC's
expansion needs, PGC agreed to lease the Irish Valley Plant.
133. Upon information and belief, Grimes and/or Food T&T was already operating at
the Irish Valley Plant prior to seeking approval from the PGC shareholders and deliberately
deceived the PGC shareholders as to the status of operations at the Irish Valley Plant.
.-152761vl 19
134. Grimes did not reveal to the other shareholders that he and Food T&T xvere
operating or intended to operate at the Irish Valley Plant.
135. Likewise, Grimes did not reveal to the other shareholders that he and Food T&/
need and intended to utilize the Irish Valley Plant for their own purposes --- which were directly
contrary to and competitive with the purposes of PGC.
136. These omissions were purposeful and were material ant the time the occurred.
137. Additionally, Grimes represented to the other shareholders and directors that PGC
needed the Irish Valley Plant and that such plant would be a great benefit to PGC.
138. These representations were false at the time Grimes made them, and he knew
them to be false.
139. While PGC occupied the Irish Valley Plant, Grimes used PGC funds to improve
the physical and mechanical facilities at the Irish Valley Plant.
140. Many of such improvements were done without prior approval of the other
shareholders of PGC in violation of the Close Corporation Agreement.
141. In early 2002, Grimes also induced PGC into making numerous other
improvements to the Irish Valley Plant
142. Upon information and belief, Grimes' motive for the lease of the Irish Valley
Plant was to, at PGC's expense, develop a plant location for his own personal use and for use by
Food T&T.
143. Grimes fraudulently induced PGC to enter into a Lease Agreement for the Irish
Valley Plant and to make numerous improvements to the Irish Valley Plant, as set forth above,
all with full knowledge that such Grimes intended to utilize the Irish Valley Plant, as improved,
for his personal benefit and for the benefit of Food T&T and to the detriment of PGC.
.-152761vl 20
144. PGC reasonably relied upon Grimes' omissions and false representations because
he was an officer, director and shareholder of PGC when he made them. He also owed the other
shareholders and PGC a fiduciary duty.
145. On numerous occasions after the lease and improvement of the Irish Valley Plant,
Grimes and Food T&T did then utilize the Irish Valley Plant for his personal benefit and for the
benefit of Food T&T and to the detriment of PGC.
146. Further, Grimes fraudulently induced PGC to enter into the Lease and make the
improvements to the Irish Valley Plant in order to divert and/or steal customers from PGC and
for the purpose of engaging in competition with PGC.
147. Grimes took the aforesaid actions with malice, recklessness, ill-will and
intentionally to inflict injury upon PGC.
148. As a proximate result of the concerted actions of Grimes and Food T&T, PGC has
suffered and will continue to suffer damages.
COUNT NINE
(Negligent Misre0resentation - Grimes)
149. Plaintiffreavers the allegations contained in paragraphs 1 through 148 above as if
fully rewritten herein.
150. As on officer, director and shareholder, Grimes has a duty to disclose all material
facts about the Irish valley Plant to PGC and to provide truthful information about the plant to
PGC.
151. Grimes breached that duty by his omissions and false statements.
152. The statements and material omissions described above were made negligently.
.-152761vi 21
153. PGC reasonably relied upon Grimes' omissions and false representations because
he was an officer, director and shareholder of PGC when he made them. He also owed the other
shareholders and PGC a fiduciary duty.
154. As a proximate result of Grime's negligent misrepresentations and omissions
PGC suffered damages.
COUNT TEN
(Civil Consoiracv - Grimes, Food T&T and John Doe #1 throu.oh John Doe #5)
155. Plaintiffreavcrs the allegations contained in paragraphs 1 through 154 above as if
fully rewritten herein.
156. Grimes, Food T&T and John Doe #1 through John Doe #5 acted in concert for the
purpose of converting PGC property, interfering with PGC business relations, misappropriating
PGC and MTG trade secrets and intentionally causing injury to PGC and MTG.
157. Grimes, Food T&T and John Doe #1 through John Doe #5 acted tortiously and
criminally to inflict injury upon PGC and MTG.
158. Specifically, Grimes, Food T&T and John Doe #I through John Doe #5
misappropriated PGC's trade secrets and proprietary information for the purpose of engaging in
unfair competition with PGC and MTG.
159. Further, Grimes and Food T&T tortiously interfered with PGC's business
relations with its customers to steal those customers, for the purpose of engaging in unfair
competition with PGC.
160. Additionally, Grimes and Food T&T unlawfully utilized and removed tangible
property from PGC without the knowledge or authorization of PGC.
,-152761vl 22
161. Grimes intentionally misled and fraudulently deceived PGC into making
expenditures and entering into agreements, the benefits of which Grimes knowingly intended to
utilize for his own benefit and the benefit of Food T&T and to the detriment and in competition
with PGC and MTG.
162. Grimes and Food T&T unlawfully, converted inventory, supplies and other assets
of PGC and exerted dominion and control over them for their own uses.
163. Food T&T knowingly accepted the property and information Grimes had
converted and put it to its own use - all without the knowledge or authorization of PGC.
164. John Doe #1 through John Doe #5 knowingly accepted the property and
information Grimes had converted and put it to their own use - all without the knowledge or
authorization of PGC.
165. Grimes and Food T&T utilized PGC inventory and PGC facilities to produce
samples for third parties in order to induce them to purchase Food T&T products and/or services
from Grimes.
166. Grimes, Food T&T and John Doe #1 through John Does #5 (where applicable)
took the aforesaid actions with malice, recklessness, ill-will and intentionally to inflict injury
upon PGC and MTG.
167. As a proximate result of the concerted actions of Grimes, Food T&T and John
Doe #1 through John Doe #5, PGC and MTG have suffered and will continue to suffer damages.
COUNT ELEVEN
(Uniust Enrichment- Grimes)
168. Plaintiffreavers the allegations contained in paragraphs 1 through 167 above as if
fully rewritten herein.
.-t5276tvl 23
169. Grimes through his fraudulent actions, breaches of contract, misappropriation of
trade secrets, tortious interference with contracts and business relations and civil conspiracy, has
been unjustly enriched at the expense of and to the detriment to PGC and MTG.
170. As a proximate result, MTG and PGC have suffered damages.
COUNT TWELVE
(Uniust Enrichment- Food T&T)
171. Plaintiff reavers the allegations contained in paragraphs 1- 170 above as if fully
rewritten herein.
172. Food T&T through its fraudulent actions, breaches of contract, misappropriation
of trade secrets, tortious interference with contracts and business relations and civil conspiracy,
has been unjustly enriched at the expense of and to the detriment to PGC and MTG.
173. As a proximate result, MTG and PGC have suffered damages.
COUNT THIRTEEN
(Uniust Enrichment -John Doe #1 through John Doe #5)
174. Plaintiff reavers the allegations contained in paragraphs 1- 172 above as if fully
rewritten herein.
175. John Does #1 through John Does #5 through their respective fraudulent actions,
misappropriation of trade secrets and civil conspiracy, has been unjustly enriched at the expense
of and to the detriment to PGC and MTG.
176. As a proximate result, MTG and PGC have suffered damages.
COUNT FOURTEEN
(Accounting- Grimes, Food T&T and John Doe #1 throm~h John Doe #5)
.-152761vl 24
177. Plaintiff reavers the allegations contained in paragraphs 1- 175 above as if t'ully
rewritten herein.
178. Plaintiffs demand an accounting of all operations and income generated by
Grimes, Food T&T and John Doe #1 through John Doe #5, since January 1, 1999, in order to
account for the benefits received by such parties due to their respective fraudulent actions,
breaches of contract, misappropriation of trade secrets, tortious interference with contracts and
business relations and civil conspiracy.
WHEREFORE, PGC respectfully requests that the Court render judgment in its favor and
against all Defendants, jointly and severally, as follows:
On Count One, compensatory damages in an amount in excess of
Five Hundred Thousand Dollars ($500,000.00), plus prejudgment
and post-judgment interest and the costs of this action, including
attorneys' fees.
On Count Two, compensatory damages together with punitive
damages in an amount in excess of One Million Dollars
($1,000,000.00), plus prejudgment and post-judgment interest and
the costs of this action, including attorneys' fees.
On Count Three, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus equitable relief to cease
Defendants' activities as the court me deem proper, plus
prejudgment and post-judgment interest and the costs of this
action, including attorneys' fees.
On Count Four, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus equitable relief to cease
Defendants' activities as the court me deem proper, plus
prejudgment and post-judgment interest and the costs of this
action, including attorneys' fees.
On Count Five, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus equitable relief to cease
Defendants' activities as the court me deem proper, plus
,-152761vl 25
prejudgment and post-judgment interest and the costs of this
action, including attorneys' fees.
On Count Six, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus prejudgment and post-
judgment interest and the costs of this action, including attorneys'
fees.
On Count Seven, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus prejudgment and post-
judgment interest and the costs of this action, including attorneys'
fees.
On Count Eight, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus prejudgment and post-
judgment interest and the costs of this action, including attorneys'
fees.
On Count Nine, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus prejudgment and post-
judgment interest and the costs of this action, including attorneys'
fees.
On Count Ten, compensatory and punitive damages in excess of
One Million Dollars ($1,000,000.00), plus equitable relief to cease
Defendants' activities as the court me deem proper, plus
prejudgment and post-judgment interest and the costs of this
action, including attorneys' fees.
On Count Eleven, compensatory damages in excess of Five
Hundred Thousand Dollars ($500,000.00), plus prejudgment and
post-judgment interest and the costs of this action, including
attorneys' fees.
On Count Twelve, compensatory damages in excess of Five
Hundred Thousand Dollars ($500,000.00), plus prejudgment and
post-judgment interest and the costs of this action, including
attomeys' fees.
On Count Thirteen, compensatory damages in excess of Five
Hundred Thousand Dollars ($500,000.00), plus prejudgment and
post-judgment interest and the costs of this action, including
attorneys' fees.
.-152761vl 26
On Count Fourteen, for an accounting of the Defendants'
operations and income, plus prejudgment and post-judgment
interest and the costs of this action, including attorneys' fees.
On all Counts, prejudgment and post-judgment interest, the costs
of this action, including attorneys' fees, and such other and further
relief as the Court deems just.
JOHN P. SUSANY #0039472
RONALD K. STAP, KEY #0059174
CARRIE M. ROUSH #0071537
Stark & Knoll Co., L.P.A.
76 South Main Street, Suite 1512
Akron, Ohio 44308
(330) 376-3300
Attorneys for Plaintiffs, Power Gourmet
Concepts, Inc. and More Than Gourmet,
Inc.
JURY DEMAND
A trial by jury is hereby demanded on all issues so triable.
One of the Attorneys for Plaintiffs, Power
Gourmet Concepts, Inc. and More Than
Gourmet, Inc.
27
1N THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
POWER GOURMET CONCEPTS, INC., )
et al., )
)
Plaintiffs, )
)
)
MARLIN GRIMES, et al., )
20030CT 23 Plf
SUHHIT CO~lHTy
CLERK OF COURTS
CASE NO. 2003 06 3311
JUDGE BOND
ORDER
)
Defendants. )
THIS CAUSE came ~ on Plaintiffs, Power Gourmet Concepts, Inc.'s and More
Than Gourmet, Inc.'s Motion for the Issuance of a Commission to Take the Tes~9onY ofa Wimess
Who Resides Outside of the State of Ohio ("Motion").
IT APPEARING TO THE COURT that the Records Custodian of Brown Schultz Sheridan
& Fritz has information relevant to this action and that the Records Custodian of Brown Schultz
Sheridan & Fritz is located in the State of Pennsylvania and
IT FURTHER APPEARING TO THE COURT that a Commission should issue out of this
Court directing that a Court Reporter and Notary in and for the State of Pennsylvania take the oral
and/or video deposition of the Records Custodian of Brown Schultz Sheridan & Fritz, which
Commission will assist the Plaintiffs in obtaining process from the Courts of Pennsylvania to (i)
compel the attendance of the witness for the purpose of taking his deposition, and (ii) compel the
production of certain documents in accordance with the Notice of Deposition Duces Tecum, is is
therefore
ORDERED that the Motion be, and the same is hereby granted and it is further
4
ORDERED that a Commission issue out of and under seal of this Court directed to a duly
certified Notary Public and Court Reporter in and for the State of Pennsylvania authorizing
him/her to take the testimony'by oral and/or videotape examination of the Records Custodian of
Brown Schultz Sheridan & Fritz and/or for discovery and/or to be read as evidence in this cause.
[ Sm~gnit County CourtJofCommon Pleas
L....~xon, Ohio
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within PETITION FOR ISSUANCE
OF SUBPOENA PURSUANT TO 42 PA. C.S.A. § 5326 has been served via first class, U.S.
mail, postage prepaid, on this [,.~ day of February, 2004, upon the following:
Kevin T. Roberts, Esquire
Bishoy M. Mikhail, Esquire
THE ROBERTS LAW FIRM
323 Lakeside Avenue West
Suite 450 Lakeside Place
Cleveland, OH 44113
(Counsel for: Marlin Grimes; Nancy Grimes and
Food Technologies and Traditions)
Mary Louise L'Hommedieu, Esquire
STARK & KNOLL, CO., L.P.A.
76 South Main Street; Suite 1512
Akron, OH 44308
(Counsel for: Power Concepts, Inc.; More Than Gourmet, Inc.)
MICHAEL P. ROBIC, ESQUIRE
Pa. I.D. No.: 75578
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CWIL D1VISION
POWER GOURMET CONCEPTS, INC.; )
MORE THAN GOURMET, INC., )
CIVIL DIVISION
Case No.: (Dq-/.~c~ ~
ORDER OF COURT
AND NOW, to-wit, this ~ day of ~1~/.~ ~,[n , 2004, upon
consideration of the Petition for Issuance of Subpoena Pursuant to 42 Pa. C.S.A. § 5326 filed by
Power Gourmet Concepts, Inc. and More Than Gourmet, Inc., and for good cause shown, it is
hereby ORDERED, ADJUDGED and DECREED that said Petition is GRANTED and said
parties are permitted to issue a Subpoena upon Brown Schultz Sheridan & Fritz from the Court
of Common Pleas of Cumberland County pursuant to the Pennsylvania Rules of Civil Procedure
for use in the matter pending in the Court of Common Pleas of Summit County, Ohio at Case
No.: 2003-06-3311, including, as part of their subpoena, a request for the production of
documents.
BY THE COURT: