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HomeMy WebLinkAbout04-1110Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiffs LYNN A. REIGLE, REIGLE, L.L.C., REIGLE YORK, L.L.C., Plaintiffs JEFFREY S. VAN BOSKIRK, Defendant and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NOTICE TO DEFEND To the Defendant: YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TQ ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 30l Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiffs LYNN A. REIGLE, REIGLE, L.L.C., and REIGLE YORK, L.L.C., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. JEFFREY S. VAN BOSKIRK, Defendant CIVIL ACTION - EQUITY AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mbs adelante en las siguientes pbginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despubs de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte pot escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted fal)a de romar accibn como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra redamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mbs aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CQNSEGUlR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiffs LYNN A. REIGLE, REIGLE, L.L.C, and : REIGLE YORK, L.L.C., : Plaintiffs JEFFREY S. VAN BOSKIRK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - EQUITY COMPLAINT AND NOW, this __ day of March, 2004, comes Plaintiffs, Lynn A. Reigle, Reigle, L.L.C. and Reigle York, L.L.C. by and through their undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and fines this complaint and in support thereof avers as follows: PARTIES 1. Plaintiffs am Lynn A. Reigle, an adult individual who resides at 211 Church Road, Shermansdale, Pennsylvania 17090 ("Reigle"), Reigle, L.L.C., a limited liability company organized under the laws of the Commonwealth of Pennsylvania with this principal place of business located at 15 N. 5t~ Street, Lemoyne, Cumberland County, Pennsylvania 17043 ("L.L,C,") and Reigle York, L.L.C., a limited liability company organized under the laws of the Commonwealth of Pennsylvania with this principal place of business located at 15 N. 5t~ Street, Lemoyne, Cumberland County, Pennsylvania 17043 ("L,L.C. York"). 2. Defendant, Jeffrey S. Van Boskirk, is an adult individual who resides at 1013 S. Humer Street, Enola, Cumberland County, Pennsylvania ("Van Boskirk"). VENUE 3. Venue is proper in Cumberland County, as the Assignment of Membership Interests ' (hereinafter the "Assignment Agreement") through which Reigle and L.L.C.'s rights and remedies arise was executed here in Cumberland County. FACTS 4. Reigle, Van Boskirk and Van Reigle, L.L.C. were franchisees of Arthur Murray international, Inc. ("AMI") operating two (2) dance schools/studios in Lemoyne and York, Pennsylvania. 5. On September 5, 2002, ReigJe entered into the Assignment Argeement wherein Reigle purchased from Van Boskirk his forty-nine (49%) percent membership interest in Van Reigle, L.L.C. and when added to Reigle's fifty-one (51%) percent membership interest, Van Reigle, L.L.C., became a single member limited liability company with one hundred (100%) percent of the membership interest belonging to Reigle.. A true and correct copy of the Assignment Agreement is attached hereto and incorporated herein as Exhibit "A". 6. Van Reigle, L.L.C. transferred and assigned all assets, rights, duties and obligations, including those set forth in the Assignment Agreement to L.L.C. and L.L.C. York, limited liability companies organized to operate and manage two (2) AMI franchises located in Lemoyne and York, respectively. 7. To date, L.L.C. and L.L.C. York continue to own, operate and manage the franchises with AMI in Lemoyne and York. 8. The Lemoyne studio is located at 15 N. 5~h Street, Lemoyne, Cumberland County, Pennsylvania 17043. 17402, The York Studio is located at 2566 Eastern Boulevard, York, York County, Pennsylvania 10. Under Paragraph 6 of the Assignment Agreement, Van Boskirk agreed to be bound by, inter alia, a covenant not to compete against Reigle, L.L.C. and L.L.C. York. The covenant in Paragraph 6 of the Assignment Agreement is set forth in its entirety as follows: Non-Comtoete Covenant of Van Boskirk. In consideration of the purchase and sale herein contemplated, Van Boskirk hereby agrees that for a period of four (4) years after the date of execution of this Assignment, Van Boskirk shall not for any reason whatsoever, directly or indirectly, as a stockholder of any corporation; as a partner in any partnership; as a member of any limited liability company; as an owner, investor, principal, or agent; open, establish, purchase, manage, or become employed or contract independently with any dance studio or school of dance or other similar entity within the air radius restrictions stated below; or in any other manner, engage or assist any other party in any business which competes with the business conducted by Reigle or L.L.C. within a seventy-five (75) mile air radius of each of the franchise locations (15 N. Fifth Street, Lemoyne, Pennsylvania 17043, and 2566 Eastern Boulevard, York, Pennsylvania). Van Boskirk also agrees that, for the same period, Van Boskirk shall not, directly or indirectly, call upon, solicit, write, direct, divert, or accept business from any client or student of Reigle or L.L.C.. Van Boskirk, for that same period, shall not call upon, solicit, write, direct, dived or attempt to engage any employee of L.L.C. for the purpose of working elsewhere. The parties hereby recognize, acknowledge, and agree that the territorial and time limitations contained in this paragraph are reasonable and propedy required for the adequate protection of the business to be conducted by Reigle and L.L.C.. In the event of a breach or a threatened breach by Van Boskirk of any provision(s) of this paragraph, Van Boskirk agrees that Reigle or L.L.C. shall suffer irreparable injury, and that Reigle or L.L.C. shall be entitled to injunctions, both preliminary and final, without bond or security, enjoining and restraining such breach or threatened breach, and such remedies shall be in addition to all other remedies which may be available to Reigle or L.L.C. either at law or in equity. Van Boskirk further agrees to be bound by these same covenants with respect specifically to opening and or operating an Arthur Murray International, Inc. franchise within the following counties: York, Lancaster, Adams, Cumberland and Dauphin for a period of eight (8) years. The parties recognize that any violation of this Covenant is one that will result in significant damages. Due to the nature of this business, solicitation of a client or student could result in a loss of $15,000.00 annual income and the loss of an instructor / employee could result in an annual loss of $150,000.00 of income, This Covenant Not to Compete will be considered null and void if Reigle and L,L,C, no longer operate the franchises described herein. 11. Paragraph 6 of the Assignment Agreement sets forth a period of four (4) years after the date of the execution of the Assignment Agreement as well as a seventy-five (75) mile air radius geographic restriction with respect to prohibited acts set forth in said Paragraph. 12. Van Boskirk currently operates an art gallery known as the Second Floor Gallery located at 105 S. Market Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. On a number of occasions, Van Boskirk has contacted and called upon, orally or by writing, current and former students of ' Plaintiff for the purpose of promoting his art gallery. During the course of those contacts and conversations, it is believed and therefore averred that the Van Boskirk's relationship with Reigle, L.L.C. and L.L.C. York was discussed in a disparaging manner. 13. A former student of L.L.C., Kevin Freedman, opened a ballroom dance center, Pa Dance Sport, located in Hummelstown, Pennsylvania. Van Boskirk was present during the grand opening of Pa Dance Sport and participated in the opening with Kevin Freedman, a student of L.L.C. at the time. Van Boskirk was directly and/or indirectly promoting Pa Dance Sport, a competitor of Plaintiffs. 14. Van Boskirk made a number of disparaging remarks at the grand opening of Pa Dance Sport to former employees of L.L.C. and encouraged these individuals to begin a patronage with Pa Dance Sport. 15. Van Boskirk has danced with current students of L.L.C. since September 5, 2002. 16. Van Boskirk has told directly and/or indirectly current and former students that Reigle and L.LC.'s business is not doing well financially and there are problems internally with the staff. Van Boskirk has disseminated false information to former and current employees, former and current students as well as third parties. 17. It is believed and therefore averred that Van Boskirk has directly and/or indirectly engaged and/or assisted other parties in businesses that compete with the business conducted by Plaintiffs within the geographic and time limitations as set forth in the Assignment Agreement. 18. Van Boskirk directly and indirectly called upon, solicited, wrote, directed, diverted and/or accepted business from students of Plaintiffs in violation of the Non-Compete Covenant. As a direct and proximate result of Van Boskirk's actions, students have terminated their business relationships with Plaintiffs. 19. By letters dated August 4, 2003 and October 16, 2003, Van Boskirk was asked to discontinue any further contact with students and/or instructors in violation of his franchise agreement with AMI. By letter dated October 23, 2003, through Van Boskirk's counsel, Steven P. Minor, Esquire, Van Boskirk was ' asked by Reigle's counsel to refrain from any further violation of the Assignment Agreement. COUNT I - BREACH OF CONTRACT NON-COMPETE EMPLOYMENT AGREEMENT 20. The foregoing numbered paragraphs are incorporated herein by reference. 21. Van Boskirk's actions constitute intentional violation of the Non-Compete Covenant contained in the Assignment Agreement which are ongoing and causing immediate and irreparable harm to Plaintiffs. 22. As a direct and proximate result of Van Boskirk's violation of the Non-Compete Covenant of the Assignment Agreement as set forth herein, which are ongoing, Van Boskirk is causing immediate and irreparable harm to Plaintiffs. 23. By recent correspondence, Van Boskirk has been asked to cease from any further violation of the Non-Compete Covenant of the Assignment Agreement, but such violation continues. 24. Van Boskirk, since entering into the Assignment Agreement, has directly and/or indirectly called upon, solicited, written, directed, diverted and/or accepted business from clients and/or students of Plaintiffs. 25. Paragraph 6 of the Assignment Agreement expressly entitles Plaintiffs to immediate equitable relief, enjoining Van Boskirk from any further violation of the Employment Agreement and any of the non- compete terms contained therein. 26. Plaintiffs will continue to suffer immediate and irreparable harm if the actions of Van Boskirk are not enjoined, including, not limited to loss of clients, profits, business reputation, market share and confidential information. 27. Van Boskirk recognized that any violation of Paragraph 6 of the Assignment Agreement would result in significant damages and that Plaintiffs have no adequate remedy of law. WHEREFORE, Plaintiffs demand judgment against Van Boskirk, including an Order: A. Preliminary and thereafter permanently enjoining Van Boskirk from further breach of the Assignment Agreement; B. Preliminarily and thereafter permanently enjoining Van Boskirk from directly or indirectly, calling upon, soliciting, writing, directing, diverting or accepting business from any client and/or student of Plaintiffs; Awarding Plaintiffs monetary damages for loss in an amount exceeding the minimum amount for compulsory arbitration; and D. Any other relief this Court deems just. COUNT II - TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS 28. The foregoing numbered paragraphs are incorporated herein by reference. 29. By directly or indirectly calling upon, soliciting, writing, directing, diverting and/or accepting business from clients or students of Plaintiffs, Van Boskirk has tortiously interfered and continues to tortiously interfere with Plaintiff's contractual relations with said students. 30. Van Boskirk's actions have deprived Plaintiffs of their rights under the Assignment Agreement to Plaintiff's detriment, financially and otherwise. 31. As a direct and proximate result of the tortious interference of Van Boskirk with Plaintiff's contractual relations with said students, Plaintiffs have suffered a loss of revenue heretofore and hereafter derived from or in connection with said tortious interference with Plaintiff's contractual relations. Date: WHEREFORE, Plaintiffs demand judgment against Van Boskirk, including an Order: A. Preliminary and thereafter permanently enjoining Van Boskirk to continue tortious interference with Plaintiff's contractual relations with said students; B. Awarding Plaintiffs compensatory damages; C. Awarding Plaintiffs punitive damages; and D. Any other relief this Court deems just. Respectfully submitted, JOHNSON, DUF~i~, ST~ WEIDNER /ttorney I.D. . ~ 906 /301 Market Stree,.t_¢ P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff jib:223670 VERIFICATION Date: I, Lynn A Reigle, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A {}4904, relating to unsworn falsification to authorities. ~ ~ Lynn A. Reigle VERIFICATION I, as the sole member of Reigle York, L.L.C., vedfy that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A §4904, relating to unsworn falsification to authorities. Date: REIGLE/~DRK, L.L.C. VERIFICATION I, as the sole member of Reigle, L.L.C., vedfy that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A §4904, relating to unswom falsification to authorities. Date: REIGLE, L.L.C. CERTIFICATE OF SERVICE AND NOW, this ~/'~day~ of March, 2004, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Steven P. Miner, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 JOHNSON, DUFFLE, STEWART & WEIDNER By:("~,'Y~ / -~.¢... ,,~)~, · ' (/ J~nnifer L. Bixler Legal Assistant EXHIBIT "A " ASSIGNMENT OF MEMBERSHIP INTERESTS VAN REI GL E, £.L. C. THIS ASSIGNMENT OF MEMBERSHIP INTEREST ("Assignment"), is made and entered into this ~ day of September 2002, by and among LYNN A. REIGLE (hereinafter "Reigle") and JEFFREY S. VAN BOSKIRK (hereinafter "Van Boskirk"). BACKGROUND 1. Reigle and Van Boskirk have previously entered into an Operating Agreement of Van Reigle, LLC, dated January 1, 2001, by which they formed a limited liability company, registered on December , 2000, as a limited liability company under Chapter 89, Title 15, Pennsylvania Consolidated Statutes, known as "VAN REIGLE, LLC.' 2. The purpose of the limited liability company was to acquire and manage two (2) Arthur Murray franchises and their assets, formerly owned by Van Boskirk or a corporation owned solely by Van Boskirk. 3. Pursuant to the above-described Operating Agreement, Reigle has a fifty-one percent (51%) membership interest and Van Boskirk has a forty-nine percent (49%) membership interest in the limited liability company. 4. Reigle desires to acquire and Van Boskirk desires to sell his respective membership interest in Van Reigle, LLC, under the terms and conditions hereinafter provided. 5. Reigle and Van Boskirk desire to confirm their understanding in writing. NOW, THEREFORE, the parties hereto, each intending to be legally bound, agree as follows: I. Bacl~round. The background set forth above is incorporated herein by reference. 2. Ol~eratin~ Aereement. The Operating Agreement of Van Reigle, LLC, dated January I, 2001, is incorporated herein by reference, and is hereinafter called "Agreement." Van Reigle, LLC, is hereinafter called "LLC." 3. A~,reement for Transfer of Partnershio Interest. Van Boskirk does hereby assign, setover, and transfer his forty-nine percent (49%) membership interest in thc LLC to Reigle, and Reigle hereby consents to and accepts said assignment and transfer. Said assignment gives Reigle one hundred percent (100%) membership interest in the LLC. 4. Assuml~tion of Oblil~ations. In consideration for the assignment of Van Boskirk's membership interest, Reigle agrees to assume Van Boskirk's proportionate share of any liabilities incurred by the LLC, except as otherwise set forth herein. a. Belco Community Credit Union credit card and line of credit. The Belco Community Credit Union credit card/line of credit in Van Boskirk's individual name, with a balance of $6,763.52 as of June 28, 2002 and any additional balance accrued to date, will be the sole and separate responsibility of Van Boskirk, individually. Van Boskirk will indemnify and hold harmless Reigle and LLC from said obligation. b. Edge Solutions Credit Card/line of credit. The Edge Solutions, Inc., credit card/line of credit with an approximate balm~ce of $20,000.00 in Van Boskirk's name individually shall become the sole and separate obligation of Van Boskirk, individually. Van Boskirk will indemnify and hold harmless Reigle and LLC from said obligation. c. Arthur Murray royalty fees prior to 2001. Van Boskirk agrees to individually assume all royalty fees accrued prior to January I, 2001and one-half (1/2) of the royalty fees for 200 l due and owing to the franchisor, Arthur Murray International, Inc., which amount to $60,697.79. This amount was paid directly to franchisor, Arthur Murray International, Inc., by Reigle, and therefore the same will be reduced from the consideration due and payable under this Assignment. LLC will be responsible for any other royalty fees accrued after January 1, 2001excluding Van Boskirk's one-half (l/2) as set forth herein due under the Franchise Agreement of Mamh 30, 2001, by and between LLC and Arthur Murray International, Inc or prior franchise agreements between Van Boskirk and the franchisor, Arthur Murray International, Inc. d. Taxes. i. Corporate Taxes. By execution of this Assignment, Van Boskirk, being all of the officers and lone shareholder of J.S. Van Management, Inc., J.S. Van York, Inc., and J.S. Van Lemoyne, Inc., hereby certifies and represents that alt of the corporate taxes have been paid since those companies have filed their Articles of Incorporation and have come into existence through their dissolution effective December 31, 2000. Should any taxes of any nature be due for any of these entities, Van Boskirk, as all of the officers and loan shareholder, and the corporations set forth herein hereby indemnifies and holds harmless R~igle and LLC from any said obligation. ii. Individual Taxes. By execution of this Agreement, Van Boskirk hereby warrants and represents that all of his individual taxes to the Federal Government, the Commonwealth of Pennsylvania, and all local municipalities are paid in full or are currently being paid under an accepted and approved offer in compromise with the Internal Revenue Service. Under the approved offer in compromise, Van Boskirk agrees to make all payments in a timely fashion and to complete the accepted terms of the offer in compromise. Should any individual taxes of any nature be due for any past tax year, Van Boskirk hereby indemnifies and holds harmless Reigle and LLC from any said obligation. 5. Consideration. In consideration for Van Boskirk's assigning, setting over, and transferring his forty- nine percent (49%) membership interest in LLC to Reigle, Reigle agrees, in consideration of the covenants, conditions, and promises set forth in this Assignment, to pay to Van Boskirk ONE HUNDRED THIRTY THOUSAND THREE HUNDRED AND FORTY-EIGHT AND 90/100 DOLLARS ($130,000.00), payable as follows: a. Reigle has paid outstanding royalty fees in the amount of $60,697.79, which amount shall be credited in full against the stated consideration set forth herein. b. Upon execution of this Agreement, Reigle shall pay to Van Boskirk $45,000.00. c. Reigle shall pay to Van Boskirk the amount o~74,651.11, payable in twenty-four (24) equal monthly installments orS1,000.00, beginning t~DJOg~'r- ! ,2002. These payments shall be made free of interest and Reigle reserves the right to make prepayment at any time, which shall be a credit toward the last payment first. Thetwenty-fifthinstallmentof$651.11 will be payable on c'~d",lo[~'~ / ~d~',2004. 6. Non-Comvete Covenant of Van Boskirk. In consideration of the purchase and sale herein contemplated, Van Boskirk hereby agrees that for a period of four (4) years after the date of execution of this Assignment, Van Boskirk shall not for any reason whatsoever, directly or indirectly, as a stockholder of any corporation; as a partner in any partnership; as a member of any limited liability company; as an owner, investor, principal, or agent; open, establish, purchase, manage, or become employed or contract independently with any dance studio or school of dance or other similar entity within the air radius restrictions stated below; or in any other manner, engage or assist any other party in any business which competes with the business conducted by Reigle or LLC within a seventy-five (75) mile air rffdius of each of the franchise locations (15 N. Fifth Street, Lemoyne, Pennsylvania 17043, and 2566 Eastern Boulevard, York, Pennsylvania). Van Boskirk also agrees that, for the same period, Van Boskirk shall not, directly or indirectly, call upon, solicit, write, direct, divert, or accept business from any client or student of Reigle or LLC. Van Boskirk, for that same period, shall not call upon, solicit, write, direct, divert or attempt to engage any employee of LLC for the purpose of working elsewhere. The parties hereby recognize, acknowledge, and agree that the territorial and time limitations contained in this paragraph are reasonable and properly required for the adequate protection of the business to be conducted by Reigle and LLC. In the event ora breach or a threatened breach by Van Boskirk of any provision(s) of this paragraph, Van Boskirk agrees that Reigle or LLC shall suffer irreparable injury, and that Reigle or LLC shall be entitled to injunctions, both preliminary and final, without bond or security, enjoining and restraining such breach or threatened breach, and such remedies shall be in addition to all other remedies which may be available to Reigle or LLC either at law or in equity. Van Boskirk further agrees to be bound by these same covenants with respect specifically to opening and or operating an Arthur Murray International, Inc. franchise within the following counties: York, Lancaster, Adams, Cumberland and Dauphin for a period of eight (8) years. The parties recognize that any violation of this Covenant is one that will result in significant damages. Due to the nature of this business, solictation of a client or student could result in a loss of $15,000.00 annual income and the loss of an instructor / employee could result in an annual loss of $150,000.00 of income. The parties agree that the geographical ama and time period referred to in this paragraph are divisible and severable, and that, if the restrictions are held by any Court to be unenforceable with respect to the geographic area and time interval, the restrictions remain applicable to that portion of any reduced geographical area and time interval designated by the Court. The parties recognize that, in the event ora breach by Van Boskirk of any of the provisions of this paragraph, the remedy at law alone would be inadequate and, accordingly, Reigle or LLC, in addition to damages, shall be entitled to an injunction restraining Van Boskirk from violating the covenants herein contained. This Covenant Not to Compete will be considered null and void if Reigle and LLC no longer operate the franchises described herein. 7. Partnership Assets. Upon execution hereof, all assets of the LLC shall be and remain the sole and separate property of the LLC, free and clear of any claim, demand, action or cause of action by Van Boskirk. Those assets include, but are not limited to, those set forth in the Asset Pumhase Agreement by and between LLC and Van Boskirk, dated January 1, 2001. 8. Partners' Revresentations. Van Boskirk makes the following representations to Reigle and LLC, which shall be effective as of the date of this Assignment: a. Authority. Van Boskirk has the authority, without the joinder of any person or entity, to sign this Assignment and to assign his membership interest in the LLC as provided herein. b. Litigation. Van Boskirk is not aware of any legal actions, suits, arbitrations, or other administrative or governmental proceedings pending or threatened against Van Boskirk, his property, assets, or business, that would impair or affect the right of Van Boskirk to sell his membership interest in the LLC as herein provided. c. Assienment or Pledge of Membership Interest. Van Boskirk has not assigned or pledged his membership interest to any creditor or otherwise, which would impair or affect the ability of Van Boskirk to assign his membership interest, as provided in this Assignment. 9. Contim!encv Ul~on Franchisor Apvroval. This Assignment is contingent upon the franchisor's, Arthur Murray International, Inc., approval of same. Should the franchisor fail to approve the Assignment, the same shall be null and void in total. All consideration paid herein shall be returned to Reigle immediately. Both parties hereto agree to execute any and all documents necessary to give effect to the provisions herein as well as in the Agreement. 10. Effective Date. This Assignment of Membership Interest, for all purposes, including tax purposes, shall be effective immediately. 11. Bindinl~ Effect. This Assignment shall be binding and shall inure to the benefit of Van Boskirk and Reigle, their respective heirs and/or representatives. I2. Assienment. This Assignment may not be assigned by Van Boskirk or Reigle without prior written consent of all parties to this Assignment. 13. Governine Law. This Assignment shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Both parties hereby consent to any actions litigated hereunder to the jurisdiction of the Commonwealth of Pennsylvania. 14. and Reigle. Entire A~reement. This Assignment contains the entire understanding by and between Van Boskirk 15. Modification. This Assignment shall not be amended, altered, or changed, except in writing and signed by Van Boskirk and Reigle. 16. Partial Invalidity. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall, nevertheless, continue in full force and effect without being impaired or invalidated in any way. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Assignment to be signed and delivered as of the date and year first written above. WITNESS: : 162329 COMMONWEALTH OF PENNSYLVANIA : COUNTY OF C_~,~cx:x ',o,~c~ : On this, the %~-~' day of ~-,r ,ex evr¥c' r- 2002, before me, the undersigned officer, personally appeared LYNNA. REIGLE, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes thereln contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public NOTARIAL SEAL MICHELLE M. BROSS Notary Public Lemoyne Borough Cumberland My Commission Expires Sept. 23, 2002 COMMONWEAL'I'll OF PENNSYLVANIA : : SS: COUNTY OF Q~.x,,-x--'~r~ \~xc-~ : On this, the c~x__~ day of ~c ~- ~-x~r-e f2002, before me, the undersigned officer, personally appeared JEFFREY,ff. VANBOSKIRK, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public NOTARIAL SEAL MICHELLE M. BI~0SS, Notary Public Lemoyno Borough Cumberland Co. My Commission Expires Sept. 23, 2002 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 7614540 Attorneys for Plaintiffs LYNN A. REIGLE, REIGLE, L.L.C. and REIGLE YORK, L.L.C., Plaintiffs V. JEFFREY S. VAN BOSKIRK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1110 Equity CIVIL ACTION - EQUITY PRAECIPE TO WITHDRA W AppEARANCi- AND NOW, this 15th day of June 2004, kindly withdraw the appearance of the undersigned on behalf of the Plaintiffs. JOHNSON, DUFFLE, STEWART & WEIDNER ~'~ . Duffle / / Attorney I.D. No. 75[906 AND NOW, this Plaintiffs. PRAEClPE TO ENTER APPEARAN~r' day of June 2004, enter the appearance of the undersigned on behalf of the By: Attorney I.D. No. _. :230676 C.~ERTIFICATE OF SERVIC~E On this 16th day of June 2004, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Hoffman & Goduto, LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing PRAECIPE TO WlTItDRAW APPEARANCE upon the person(s) and at the address(es) below named by United States First Class 3,fail, postage prepaid, in Harrisburg, PA: Steven p. Miner, Esquire Metzger Wickersham 3211 North Front Street Post Office Box 5300 Harrisburg, PA 17110-0300 Counsel for Plaintiff Mark C. Duffle, Esquire Johnson, Duffle, Stewart & Weidner, P.C. 301 Market Street Post Office Box 109 Lemoyne, PA 17043-0109