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HomeMy WebLinkAbout09-6047DEBRA A. WEWER, Plaintiffs V. WEST SHORE FAMILY PRACTICE, P.C., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW AND EQUITY No. eY- 0017 6il, l PkOl : JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER 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 AND FOR ANY 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 OR KNOW 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 TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 717-249-3166 800-990-9108 DEBRA A. WEWER, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA WEST SHORE FAMILY PRACTICE, P.C., CIVIL ACTION - LAW AND EQUITY NO. 46V7 e,1v. JURY TRIAL DEMANDED COMPLAINT PARTIES 1. Plaintiff Debra A. Wewer, is an adult individual residing at 46 Waverly Drive, Hummelstown, Dauphin County, PA 17036 2. Ms. Wewer is certified by the Pennsylvania State Board of Nursing as a Certified Registered Nurse Practitioner in the specialty of Family Practice ("F.N.P.-C"). 3. Defendant West Shore Family Practice, P.C. is a Pennsylvania professional corporation providing family practice healthcare services, with its principal place of business at 6375 Mercury Drive, Suite 200, Mechanicsburg, Cumberland County, Pennsylvania. Defendant 1 4. Richard C. Harker, M.D. and Creston C. Herold, Jr., M.D. are the sole shareholders of Defendant, the sole decision-makers for the professional corporation, and are family care physicians providing services to Defendant's patients. 5. Plaintiff is currently an employee of Defendant. JURISDICTION 6. Jurisdiction over the claims raised in this Complaint is conferred upon this Court pursuant 42 Pa.C.S. § 912 and this Court is empowered to issue a declaratory judgment pursuant to Pennsylvania Declaratory Judgment Act, 42 Pa.C.S. § 7531 et seq. FACTUAL ALLEGATIONS 7. In April 2006, Plaintiff and Defendant entered into an employment agreement whereby Plaintiff agreed to work for Defendant as a Nurse Practitioner. Plaintiff's employment agreement contains a restrictive covenant (the "Covenant") that restricts her employment following separation with Defendant. A copy of the relevant portions of the employment agreement is attached as Exhibit 1. 9. Specifically, the Covenant prohibits Plaintiff from being able to work as a nurse practitioner for two years following her separation from Defendant and within 10 miles of Defendant's offices. See Exhibit 1, § IX C. 10. Prior to Plaintiff's agreement to be employed by Defendant, its shareholders, Dr. Harker and Dr. Herold, assured her that based on Defendant's provider productivity model, her income would be the same as or greater than her income with her then- current employer. 2 11. Plaintiff accepted employment with Defendant in reliance on this assurance, without which she would not have agreed to be employed by Defendant. 12. Contrary to Dr. Harker's and Dr. Herold's assurances, Plaintiff earned substantially less income as a provider with Defendant than she had earned previously without any fault of her own. 13. In 2006, Plaintiff s income was 20% less than it had been in 2005 with her prior employer. 14. In 2007, her income was 10% less than in 2005. 15. In 2008, her income was still slightly less than her income in 2005. 16. As a result of the material decline in her income over the past three years, Plaintiff has suffered substantial economic harm. 17. Prior to Plaintiffs agreement to be employed by Defendant, its shareholders, Dr. Harker and Dr. Herold, assured her that while Defendant did not offer a retirement plan at the time it hired her, Defendant would establish such a plan within one year. 18. Plaintiff accepted employment with Defendant in reliance on this assurance, without which she would not have agreed to be employed by Defendant. 19. Contrary to Dr. Harker's and Dr. Herold's assurances, Defendant did not offer a retirement plan for two years, and then established a non-traditional, undesirable plan. 20. Because of the undesirability of Defendant's retirement plan, Plaintiff does not participate and remains without a retirement plan. 21. When Plaintiff became employed by Defendant, it employed five providers: three doctors, one physicians' assistant and Plaintiff, a nurse practitioner. 3 22. Shortly after Plaintiff commenced her employment, two of the five providers left Defendant. 23. As a result of their departure, Plaintiff was required to assume both providers' patient loads and work one Saturday out of every three, instead of one out of every five. 24. As a result, plaintiff s hours and responsibilities were substantially increased from when she commenced employment with Defendant. 25. Defendant provided no additional compensation to Plaintiff for this resulting increase in her hours and responsibilities. 26. In the fall of 2006, just five to six months after Plaintiff commenced employment with Defendant, Dr. Herold advised Plaintiff to search for other employment for reasons wholly unrelated to her job performance or her relationship with Defendant. 27. As a result of the circumstances alleged at paragraphs 22 through 26, in addition to others, Plaintiff began attempting to secure other employment in 2007, and diligently searched for openings for Nurse Practitioners specializing in Family Practice throughout the Harrisburg area on both the East and West Shores. 28. The only position Plaintiff was able to secure in almost two years of diligent searching was with a practice (hereinafter referred to as "New Practice") located 4.27 miles from Defendant's office. 29. Plaintiff requested that Defendant agree not to attempt to enforce the Covenant in her employment agreement to allow her to be employed by New Practice in exchange for (1) her promise not to solicit any Defendant patients, (2) her promise not to identify her new employer to any Defendant patients, and (3) her agreement to continue to provide 4 services to patients at Defendant during the transition period between her last day of work for Defendant and commencement of her employment with New Practice, approximately six to eight weeks. 30. Defendant declined Plaintiff's request, has stated its intent to attempt to enforce the Covenant, has so notified New Practice and, upon information and belief, has threatened to sue New Practice if it employs Plaintiff. 31. As a result of Defendant's threatened legal action against New Practice, New Practice has withdrawn its offer of employment but has agreed to hold its position for Plaintiff until February 2010 if she is able to obtain an agreement from Defendant to forego the Covenant. 32. Defendant has further advised Plaintiff that it will not permit her to remain employed at Defendant and that it has hired a replacement for her position, who will commence employment in October 2009. 33. Plaintiff's final day of employment with Defendant is October 1, 2009. 34. If Plaintiff is unable to accept employment with New Practice, she will be unemployed for an indefinite time, placing her at serious financial risk. COUNTI DECLARATORY RELIEF 35. The averments of paragraphs 1 through 34 are incorporated by reference. 36. The Covenant is not enforceable or valid because it is not reasonably limited as to the scope of restricted activities, duration of time and geographical extent. 5 37. The Covenant is not enforceable or valid because Defendant has no legitimate interest to be protected through the Covenant. 38. The Covenant not enforceable or valid because the sole purposes for the Covenant are to eliminate or repress competition and to keep Plaintiff from competing so that Defendant can gain an economic advantage. 39. The Covenant is not enforceable or valid because Defendant will not suffer harm if Plaintiff becomes employed by New Practice. 40. The Covenant is not enforceable or valid because Plaintiff has an important interest in being able to earn a living in her chosen profession with a practice by which she wishes to be employed. 41. The Covenant is not enforceable or valid because Plaintiff will suffer significant economic harm if she is not permitted to accept employment with New Practice. 42. The Covenant is not enforceable or valid because, unlike other medical professionals, Nurse Practitioners are not permitted under the law of Pennsylvania to maintain independent medical practices, but may only perform services for physicians. 43. Plaintiff is therefore limited in her ability to practice her profession to the extent she is able to gain employment with a medical practice. 44. Plaintiff's interests and the harm she would suffer as a result of enforcement of the Covenant substantially outweigh any interest of Defendant in enforcing the Covenant and any potential harm it may claim it would suffer in the absence of enforcement. WHEREFORE, plaintiff seeks a judgment declaring the Covenant invalid and unenforceable. 6 COUNT II INJUNCTIVE RELIEF 45. The averments of paragraphs 1 through 34 and 36 through 44 are incorporated by reference. 46. A strong likelihood exists that Plaintiff will prevail on her claim for declaratory relief. 47. Defendant's interference with Plaintiff's employment with New Practice is continuing and causing irreparable harm to Plaintiff for which a remedy at law for damages is not adequate. 48. Greater injury will result from denying the injunction requested herein than from granting it. 49. Plaintiff has no adequate remedy at law and unless she obtains injunctive relief, she will continue to suffer irreparable harm. WHEREFORE, plaintiff Debra Wewer demands the entry of a decree preliminarily and permanently enjoining Defendant from taking any action to enforce the Covenant or seek damages or other relief from Plaintiff or New Practice, from taking any action to prohibit Plaintiff from accepting employment with New Practice, and from taking any action to interfere with any contract between Plaintiff and New Practice. 7 Respectfully submitted, METTE, EVANS & WOODSIDE By: KATITRYNSIMPSON, Sup. Ct. I.D. . 28960 klsimpson@mette.com 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Date: September 3, 2009 Attorneys for Plaintiff 8 518816v1 Cx4lLif WEST SHORE FAMIL Y PRACTICE, P. C. DEBRA A. WEWER, F.N.P.-C. EMPLOYMENT AGREEMENT This Agreement is made and entered into on this, the 0 day of VCOAdPb ' ZQQ7, by and between West Shore Family Practice, P.C., a Pennsylvania Corporation with its principal place of business located in Mechanicsburg, PA (hereinafter called "Corporation") and Debra A. Wewsr, F.N.P-C. (hereinafter called "Employee"). PREAMBLE WHEREAS, Employee wishes to be employed by Corporation and Corporation wishes to obtain the services of Employee; and WHEREAS, both parties wish to record the terms and conditions of such employment by entering into a written agreement in regard thereto. NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, including Exhibits "A" and "C" attached hereto and made part hereof, the parties, intending to be legally bound hereby, agree as folio": 1. TERM Subject to the provisions for termination as hereafter provided, the term of employment hereunder shall be for a period of one-year commencing on the I:L day of rAb 2008 or such other date signified by the parties in writing appends hereto, provided Employee has been certified by the Pennsylvania State Board of Nursing as a Certified Registered Nurse Practitioner in the specialty of Family Practice. The terms of this Agreement shall be automatically renewed for consecutive one year periods thereafter, or for a shorter period as is mutually agreed upon in writing, unless sooner terminated by either party pursuant to the provisions regarding termination. ll. DUTI S A. Certification Rsauirement. Employee shall at all times maintain certification as a Certified Registered Nurse Practitioner with the Pennsylvania State Board of Nursing. Page 1 of 24 S. PATIENT LIST Employee recognizes and acknowledges that the list of Employer's patients is a valuable and unique asset of Employer's business and agrees that she will not, during or after the term of her employment, use said list herself or disclose said list or any part thereof to any person, firm, corporation or entity for any reason whatsoever, nor shall she make any claim of right of ownership to such list after termination of her employment. The parties agree that all patient files are the sole property of Employer. IX. COVENANTS OF EMPLOYMENT As conditions of employment, hereunder and In _ consideration of such employment, Employee covenants and agrees: A. That during the term of this Agreement, Employee will devote all of her professional time and best efforts to performing servicesfor thabensfit of Corpomtion, B. That Employee will travel to those practice locations and health care facilities associated with Corporation as Corporation mayfrom time to time direct, C. That during the term hereof, and for a period of two (2) years thereafter, Ernpleyes will not withaut the prior written eanrsnt of the Board of Directors, directly or indirectly, as a stockholder (except as a stockholder owning beneficially or of record less than five percent (5%) of the outstanding shares of any class of publicly traded stock of any issuer), or so an employee, contractor, consultant, associate, partner, proprietor or otherwise, engage in the performance of medical or nurse practitioner services or become interested in, provide services for, advise, render medical or nurse practitioner services for or provide training to the personnel of, or advise for or on behalf of, any entity providing or proposing to provide medical or nurse practitioner services or any afer eerviees now or huroal'Wr purNrmud by Corporation or any affiliated entity, within ton (10) miles of any office of Corporation, or any office or associated facility where Employee renders services or is committed to rendering service, as of the date this Agreement terminates, D. That during the term hereof, and for a period of two (2) years thereafter, Employee will not Page 11 of 34 1. Solicit other employees of Corporation directly or indirectly, for the purpose of enticing them to leave their employment with Corporation, 2. Employ or cause to be employed other than by Corporation other employees of Corporatleir, 3. Disclose Employee's salary, benefits, bonuses, terms of employment or othersuch confidential information to any person or entity not otherwiso required by law, 4. Fail W-m* UW a adv9mpletWdIclosure OT-the existence of this Agreement and the content of this Section IX to all prospective employers, partners and associates with whom. Employee may. disrm,ss the performance of professional medicai or nurse practitioner services or other professional affiliation, and 5. Provide any medical or nurse practitioner services or any other services now or hereafter performed by Corporation or any affiliated entity (whether clinical, consultation, advisory or otherwise) to any licensed health care provider or other business person or entity with whom Employee came in contact as a direct or indirect result of Employee's employment with Corporation; E That Employee will: 1 • Refrain from directly or indirectly using or causing to be used in any manner whatsoever any information of a proprietary or confidential nature (including, without limitation, information regarding offico procedures, patient names and patlent addresses) other than in connection with fulfilling Employee's obligations hereunder and, upon termination of Employee's employment, forthwith return to Corporation and not retain or furnish to any third party, either by sample, facsimile or by verbal communication, such Information, to the extent that It has been reduced to writing (including any and all copies thereof), together with all copies of all records, forma and charts of every idnd, whether confidential or otherwise, 2. Refrain from any disparagement, direct or indirect, through innuendo or otherwise, of Corporation or any of its employees, offioers, directors, contractors or owners, and Page 12 of 34 3. Refrain from soliciting the business of any patient (or any member of a patient's family as defined under Medicare regulations) or entity for whom Corporation has provided service at any time, or attempt to induce any such patient or entity to cease being treated by Corporation; F. That during the term hereof, Employee will not, without the prior written consent of the Board of Directors in each case: Participate actively or invest in any other business interest related to the providing of madic l or nurse practitionerservices, or any other rested product or service, except for investments in widely held publicly traded securities, 2.. Borrow money from, or lend to, patients, individuals or firms (except commercial lending institutions) to whom Corporation Provides services or with whom Corporation does business, 3. Exchange the services of Corporation or Employee In return for goods, products or services, or 4. Copy any patient files or address lists; and G. ' That Employee will promptly and voluntarily advise Corporation of any activities which might result in a violation of any-rules, regulations or statutes concerning or prohibiting the referral of patients or other "related party" conduct employee represents and warrants % Corporation that, notwithstanding the operation of the Covenants contained In Subsections IX(C) and IX(G) above, upon the termination of employment hereunder, Employee will be able to support herself for the purpose of earning a livelihood. If Employee shall breach any of the covenants in Sections IX(C) and IX(D), then the two (2) year period specified therein shall be tolled during the period of such breach and shall resume only after all breaches by Employee of such covenants have ceased. If the provisions of Subsections IX(C) or IX(D) of this Agreement should be held to be invalid, Illegal or unenforceable by a court of competent jurisdiction because of the time limitation or geographical area therein provided, such provisions shall nevertheless be effective and enforceable for such period of time andfor such geographical area as may be held to be reasonable by such court. Page 13 of 34 X. INJUNCTIVE RELIEF Because the services to be performed by employes hereunder are of a special, unusual, confidential and extraordinary character which renders them unique, and because Employee will acquire, by reason of Employee's employment and association, with Corporation, an extensive knowledge of Corporation's patients, operating procedures and other confidential information, the parties recognize anti acknowledge that, In the event of a . breach or throat of breach by Employee of any of the tenns and provisions contained in Subsections IX(C), IX(d), IX(E) or 1X(F) of this Agreement, monetary damages alone to Corporation would not be an adequate remedy for a breach of any of such terms and provisions. Therefore, It is agreed that In the event of a breach orthreat of a breach of any of the provisions contained In said sub6octions by Employee, Corporation shall be entitled to an immediate injunction from any court of competent jurftdiction restraining Employee, as well as any third parties including successor employers and partners of Employee whose joinder may be necessary to effectfull and complo% relief, from committing or continuing to commit a breach of such provisions without the showing or proving of actual damages. Any preliminary injunction or restraining order shall continue in full force and effect until any and all disputes between the parties to such injunction or order regarding this Agreement have been finally rssolvsd. Employee hereby waives any right Employee may have to require Corporation to post a bond or other security with respect to obtaining or continuing any such injunction or temporary restraining order and, further, hereby releases Corporation, ita officers, directors, employees and stockholders from and waives any claim for damages again** them which Employee (night have with respect to Corporation's obtaining In good faith any injunction or restraining order pursuant to this Agreement. In addition W any equitable relief provided for in this Section, Employee agrees to pay to Corporation as liquidated damages for violation of any of the terms and provisions contained in Subsections IX(C), IX(Q), IX(E) or IX(F) of this Agreement the sum of seventy-five-thousand dollars (=75,000.00), which the parties agree is a reasonable estimate of the damages to Corporation occasioned by such breach, recognizing that such damages are not otherwise capable of precise calculation. XI. INDEMNIFICATION Employee covenants and agrees to indemnify and hold harmless Employer, page 14 of 34 and Employer's employees, officers and stockholders, from and against any claims, demands, liability, loss, cost or expense (including reasonable attorneys' flees) arising from or in any manner connected with Employee's breach of any term or provision of this Agreement, acts or omissions, negligence or professional malpractice, Interfional or willful misconduct Following the termination of this Agreement far any reason, Employee covenants and agrees to indemnify and hold harmless Employer, and Employer's employees, officers. and stockholders, from and against any claims, demands, liability, loss, cost or expense (including reasonable sittarn0 y?' tee r.rir:I lrt[an1 or in any Msf1f14r ssRnootod with or resulting rrom a?1y vvv aymen nuuumposmin ..W.•¦_¦...-.1 L> _. ._I...L.Ii? rvpald by Employer to aitiy Federal, State or Corm araial Third Party Payer relaleng in any manner to Employov'u bwxuh of ceding and dnaumantation responsibilities described in Sections II(B) and 11(C)(6) with respectto medical services rendarod by Employee to patients of Employer. X11. NOTICES All notices required by this Agreement shall bu in writing and shall bar-sent by certified mall, return receipt requested as follows: A. Corporation: Watt Shore Family Prscticc, P_C. 6375 Mercury Drive Suite 200 Mechanicsburg, PA 17050 With copiou to, April L McClain, Esq. Art e Wealth Law Zoo North Third Street, Suite 12-13 Harrisburg, PA 17101 And Cavanaugh Michaels, Ltd. 601 East Simpson Street Mechanicsburg, PA 17055 Page 15 of 34 B. Employee: Debra A. Wewer, F.N.P.-C. 46 Waverly Drive Hummelstown, PA 77036 XIII. RESOLUTION OF DISPUTES (?(Employee Initials) This resolution of disputes clause shall apply to any and all claims arising out of or relating to this employment agreement or the employment relationship and shall include all claims which could be joined in any action related to this agreement. A. The parties shall attempt in good faith to resolve any and all disputes ("Disputes") arising out of Employee's empioymentwith Corporation or otherwise relating in any way to this Agreement informally after written notion of the nature of the dispute is given. The parties may elect to submit any dispute to non-binding Mediation. B. Any unresolved Dispute shall be determined by common law arlbitration In Cumberland County, Pennsylvania and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties specifically intend that this agreement to arbitrate shall extend to, among other things, claims arising under this Agreement or under any federal or state statute goveming employment or civil rights. C. The parties shall agree upon one arbitrator to settle every Dispute. However, if the parties are unable to agree on an arbitrator within thirty (30) days after the request for arbitration, either party may petition for the appointment of an arbitrator by the Court of Common Pleas of Cumberland County, Pennsylvania. The decision of the arbitrator shall be final and not subject to review by any court except on the grounds stated in the applicable arbitration statute. D. The arbitrator shall be without authority to award punitive damages except with respect to fraudulent or dishonest conduct of Employee resulting in harm to third parties. XfV. WAIVER: MODIFICATION This Agreement or any provision hereof, may be amended, supplemented or modified only by a writing signed by both parties and may be waived only by a writing signed by the party to be bound thereby. A written waiver of any Page 16 of 34 provision shall be valid only in the instance for which given and shall not be deemed to be a continuing waiver or construed as a waiver of any other provision. XV. ASSIGNMENT This Agreement, being for the performance of personal services, may not be assigned by Employee in whole or in part. Corporation may assign this Agreement, including all covenants and conditions hereto, without Employee's consent to any person or entity, including but not limited to any entity that may purchase, merge with or engage in any other fundamental corporate transaction with Corporation. XVI. SEVERABILITY If any term, provision, covenant or condition of this Agreement is held by a courtof competent jurisdiction to be invalid, void or unenforceable, the rest of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. XVII. SURVIVAL The provisions of this Agreement which by their terms are designed to survive the termination of Employee's employment with Corporation shall specifically survive. XVIII. GOVERNING LAW As express additional inducement by Employee to Corporation to enter into this agreement, Employee agrees that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania and shall be construed in accordance therewith, and that as a matter of forum selection, jurisdiction regarding all disputes under or related in anyway to this Agreement shall be resolved under the arbitration provisions hereunder and that any permitted court action (e.g. to enforce arbitration) shall be brought exclusively in the Court of Common Pleas of Cumberland County Pennsylvania, or the United States District Court for the Middle District of Pennsylvania and no other court (Remainder of page intentionally blank) Page 17 of 34 XIX. ENTIRE AQREEMENT This Agreement constitutes and contains the entire agreement and under3tanding between the parties with respect to the subject mattrr hereof and supersedes any and all prior agreements, understandings and negotiations relating thereto. No promise, understanding, representation, inducement, condition or warranty not set forth herein has been made or retied an by any party hereto IN WITNESS WHEREOF, Corporation and Employee have executed this Agreement on the day and year first above written. CORPORATION. WEST SHORE FAMILY PRACTICE, P.C. Richard C. Harker, M.D., President Attest: Creslin Herold, Jr., M.D., Secretary EMPLOYEE: C?A? 0- W fAf- C- Debra A. Wewer, F.N.P.-C. -MQO-" X. r'K4A ' Witness Page 18 of 34 VERIFICATION I, DEBRA WEWER, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. -- DATED: C - I '?)? a- co'-e'c? DEBRA A. WEWER 0 2009 SP -3 2 7 o 471 ?o Oj Defendant No. 69-(p6/7c.<<,.( JURY TRIAL DEMANDED MOTION FOR PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION, AND REQUEST FOR EXPEDITED RULING DUE TO IMMINENCE OF IRREPARABLE HARM Plaintiff, by her attorneys, Mette, Evans & Woodside files the following motion for a DEBRA A. WEWER, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA CIVIL ACTION - LAW AND EQUITY WEST SHORE FAMILY PRACTICE, P.C., preliminary injunction, to be made permanent, enjoining the Defendant from enforcing or attempting to enforce a restrictive covenant contained in an employment agreement between Plaintiff and Defendant, and in support of the motion avers as follows: 1. Plaintiff Debra A. Wewer, is an adult individual residing at 46 Waverly Drive, Hummelstown, Dauphin County, PA 17036 2. Ms. Wewer is certified by the Pennsylvania State Board of Nursing as a Certified Registered Nurse Practitioner in the specialty of Family Practice ("F.N.P.-C"). 1 518908vl 3. Defendant West Shore Family Practice, P.C. is a Pennsylvania professional corporation providing family practice healthcare services, with its principal place of business at 6375 Mercury Drive, Suite 200, Mechanicsburg, Cumberland County, Pennsylvania. 4. Richard C. Harker, M.D. and Creston C. Herold, Jr., M.D. are the sole shareholders of Defendant, the sole decision-makers for the professional corporation, and are family care physicians providing services to Defendant's patients. 5. Plaintiff has filed, contemporaneous with the filing of this motion, a Complaint seeking a Declaratory Judgment that the Covenant is not enforceable. A copy of the Complaint is attached as Exhibit "A." 6. Plaintiff is currently an employee of Defendant. 7. In April 2006, Plaintiff and Defendant entered into an employment agreement whereby Plaintiff agreed to work for Defendant as a Nurse Practitioner. 8. Plaintiff's employment agreement contains a restrictive covenant (the "Covenant") that restricts her employment following separation with Defendant. A copy of the relevant portions of the employment agreement is attached to Exhibit "A" as Exhibit 1. 9. Specifically, the Covenant prohibits Plaintiff from being able to work as a nurse practitioner for two years following her separation from Defendant and within 10 miles of Defendant's offices. See Exhibit 1, § IX.C. 10. Prior to Plaintiff's agreement to be employed by Defendant, its shareholders, Dr. Harker and Dr. Herold, assured her that based on Defendant's provider productivity model, her income would be the same as or greater than her income with her then- current employer. 2 11. Plaintiff accepted employment with Defendant in reliance on this assurance, without which she would not have agreed to be employed by Defendant. 12. Contrary to Dr. Harker's and Dr. Herold's assurances, Plaintiff earned substantially less income as a provider with Defendant than she had earned previously without any fault of her own, as set forth in Exhibit "A" at paragraphs 13 through 15.. 13. As a result of the material decline in her income over the past three years, Plaintiff has suffered substantial economic harm. 14. As a result of the circumstances alleged at paragraphs 22 through 26 of the Complaint, in addition to others, Plaintiff began attempting to secure other employment in 2007, and diligently searched for openings for Nurse Practitioners specializing in Family Practice throughout the Harrisburg area on both the East and West Shores. 15. The only position Plaintiff was able to secure in almost two years of diligent searching was with a practice (hereinafter referred to as "New Practice") located 4.27 miles from Defendant's office. 16. Plaintiff s employment agreement contains a restrictive covenant (the "Covenant") that prohibits Plaintiff from being able to work as a nurse practitioner within 10 miles of Defendant's offices for two years following her separation from Defendant. See Exhibit A, Exhibit 1, § IX.C. 17. Plaintiff requested that Defendant agree not to attempt to enforce the Covenant in her employment agreement to allow her to be employed by New Practice in exchange for (1) her promise not to solicit any Defendant patients, (2) her promise not to identify her new employer to any Defendant patients, and (3) her agreement to continue to provide services to patients at Defendant during the transition period between her last day of work for 3 Defendant and commencement of her employment with New Practice, approximately six to eight weeks. 18. Defendant declined Plaintiff's request, has stated its intent to attempt to enforce the Covenant, has so notified New Practice and, upon information and belief, has threatened to sue New Practice if it employs Plaintiff. 19. As a result of Defendant's threatened legal action against New Practice, New Practice has withdrawn its offer of employment but has agreed to hold its position for Plaintiff until February 2010 if she is able to obtain an agreement from Defendant to forego the Covenant. 20. Defendant has further advised Plaintiff that it will not permit her to remain employed by Defendant and that it has hired a replacement for her position who will commence employment in October 2009. 21. If Plaintiff is unable to accept employment with New Practice, she will be unemployed for an indefinite time, placing her at serious financial risk. 22. Plaintiff submits that the Covenant is not enforceable or valid and therefore should be declared invalid and unenforceable because: (a) The Covenant is not reasonably limited as to the scope of restricted activities, duration of time and geographical extent. (b) Defendant has no legitimate interest to be protected through the Covenant. (c) The sole purposes for the Covenant are to eliminate or repress competition and to keep Plaintiff from competing so that Defendant can gain an economic advantage. (d) Defendant will not suffer harm if Plaintiff becomes employed by New Practice. 4 (e) Plaintiff will suffer significant economic harm if she is not permitted to accept employment with New Practice. (f) Plaintiff has an important interest in being able to earn a living in her chosen profession with a practice by which she wishes to be employed. (g) Unlike other medical professionals, Nurse Practitioners are not permitted under the law of Pennsylvania to maintain independent medical practices, but may only perform services for physicians. Plaintiff is therefore limited in her ability to practice her profession to the extent she is able to gain employment with a medical practice. 23. A strong likelihood exists that Plaintiff will prevail on her claim for declaratory relief. 24. Defendant's activities are actionable and enjoinable because: (a) Defendant's interference with Plaintiff's employment with New Practice is continuing and causing irreparable harm to Plaintiff for which a remedy at law for damages is not adequate. Unless Defendant is effectively enjoined and restrained from enforcing or attempting to enforce the Covenant, Plaintiff will suffer immediate, substantial, and irreparable harm in the following respects: (i) Plaintiff will be without any source of income for an indefinite period of time, as positions for Nurse Practitioners specializing in Family Practice, are extremely limited in the Harrisburg area, and Plaintiff attempted unsuccessfully for almost two years prior to obtaining an offer from New Practice to secure such a position; (ii) Plaintiff will be placed at severe financial risk if she is deprived of an income for even a short period of time; (iii) Plaintiff will lose a rare employment opportunity with New Practice, and it would be difficult if not impossible to secure a similar position within a reasonable period of time. (b) Defendant will suffer no harm as a result of the granting of the injunction requested herein. (c) Greater injury will result from denying the injunction requested herein than from granting it. Plaintiff's interests and the harm she would suffer as a result of enforcement of the Covenant substantially outweigh any interest of Defendant in enforcing the Covenant and any potential harm it may claim it would suffer in the absence of enforcement. 5 (d) The issuance of the preliminary injunction is reasonably suited to abate Defendant's wrongful acts. (e) The issuance of a preliminary injunction will prevent irreparable injury to Plaintiff. 25. Plaintiff is likely to succeed in proving at trial that Defendant's activities are actionable and enjoinable. 26. Plaintiff submits that if a ruling does not issue on or shortly after October 1, 2009, she will be without employment and without prospects for employment, and will be placed at a substantial risk of irreparable financial harm. Plaintiff therefore respectfully requests an expedited ruling of this matter. 27. No judge has ruled upon any other issue in this matter, and no related matters are pending. Cumberland County Local Rule 208.3(a)(2). WHEREFORE, Plaintiff requests that this court enter an order permanently enjoining Defendant, its servants, employees, attorneys, and all persons in active concert with it, including without limitation Richard Harker, M.D. and Creston Herold, M.D., from taking any action to enforce the Covenant or seek damages or other relief from Plaintiff or New Practice, from taking any action to prohibit Plaintiff from accepting employment with or working for New Practice, and from taking any action to interfere with any contract between Plaintiff and New Practice, or in the alternative enjoining Defendant from preventing Plaintiff from continuing her employment with Defendant pending her securing of other employment that is outside a ten mile radius of Defendant's principal place of business. 6 r Respectfully submitted, METTE, EVANS & WOODSIDE I ,v l7 By: KATJIRYIXI - SIMWSON, ESQUIRE Sup: Ct. I.P/No. 28960 U klsimpson mette. com 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Date: September 3, 2009 Attorneys for Plaintiff 7 VERIFICATION I, DEBRA WEWER, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. DATED: `"- DEBRA A. WEWER ALL-STATE* LEGAL 800---0510 ILII RECYCLED E?, ?, ?,- ? A DEBRA A. WEWER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. : CIVIL ACTION - LAW AND EQUITY WEST SHORE FAMILY NO. PRACTICE, P.C., JURY TRIAL DEMANDED Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER 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 AND FOR ANY 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 OR KNOW 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 TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 717-249-3166 800-990-9108 L DEBRA A. WEWER, Plaintiffs V. WEST SHORE FAMILY PRACTICE, P.C., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW AND EQUITY NO. : JURY TRIAL DEMANDED COMPLAINT PARTIES 1. Plaintiff Debra A. Wewer, is an adult individual residing at 46 Waverly Drive, Hummelstown, Dauphin County, PA 17036 2. Ms. Wewer is certified by the Pennsylvania State Board of Nursing as a Certified Registered Nurse Practitioner in the specialty of Family Practice ("F.N.P.-C"). 3. Defendant West Shore Family Practice, P.C. is a Pennsylvania professional corporation providing family practice healthcare services, with its principal place of business at 6375 Mercury Drive, Suite 200, Mechanicsburg, Cumberland County, Pennsylvania. 1 4. Richard C. Harker, M.D. and Creston C. Herold, Jr., M.D. are the sole shareholders of Defendant, the sole decision-makers for the professional corporation, and are family care physicians providing services to Defendant's patients. 5. Plaintiff is currently an employee of Defendant. JURISDICTION 6. Jurisdiction over the claims raised in this Complaint is conferred upon this Court pursuant 42 Pa.C.S. § 912 and this Court is empowered to issue a declaratory judgment pursuant to Pennsylvania Declaratory Judgment Act, 42 Pa.C.S. § 7531 et seq. FACTUAL ALLEGATIONS 7. In April 2006, Plaintiff and Defendant entered into an employment agreement whereby Plaintiff agreed to work for Defendant as a Nurse Practitioner. 8. Plaintiff's employment agreement contains a restrictive covenant (the "Covenant") that restricts her employment following separation with Defendant. A copy of the relevant portions of the employment agreement is attached as Exhibit 1. 9. Specifically, the Covenant prohibits Plaintiff from being able to work as a nurse practitioner for two years following her separation from Defendant and within 10 miles of Defendant's offices. See Exhibit 1, § IX.C. 10. Prior to Plaintiff's agreement to be employed by Defendant, its shareholders, Dr. Harker and Dr. Herold, assured her that based on Defendant's provider productivity model, her income would be the same as or greater than her income with her then- current employer. 2 11. Plaintiff accepted employment with Defendant in reliance on this assurance, without which she would not have agreed to be employed by Defendant. 12. Contrary to Dr. Harker's and Dr. Herold's assurances, Plaintiff earned substantially less income as a provider with Defendant than she had earned previously without any fault of her own. 13. In 2006, Plaintiff's income was 20% less than it had been in 2005 with her prior employer. 14. In 2007, her income was 10% less than in 2005. 15. In 2008, her income was still slightly less than her income in 2005. 16. As a result of the material decline in her income over the past three years, Plaintiff has suffered substantial economic harm. 17. Prior to Plaintiffs agreement to be employed by Defendant, its shareholders, Dr. Harker and Dr. Herold, assured her that while Defendant did not offer a retirement plan at the time it hired her, Defendant would establish such a plan within one year. 18. Plaintiff accepted employment with Defendant in reliance on this assurance, without which she would not have agreed to be employed by Defendant. 19. Contrary to Dr. Harker's and Dr. Herold's assurances, Defendant did not offer a retirement plan for two years, and then established a non-traditional, undesirable plan. 20. Because of the undesirability of Defendant's retirement plan, Plaintiff does not participate and remains without a retirement plan. 21. When Plaintiff became employed by Defendant, it employed five providers: three doctors, one physicians' assistant and Plaintiff, a nurse practitioner. 3 22. Shortly after Plaintiff commenced her employment, two of the five providers left Defendant. 23. As a result of their departure, Plaintiff was required to assume both providers' patient loads and work one Saturday out of every three, instead of one out of every five. 24. As a result, plaintiff s hours and responsibilities were substantially increased from when she commenced employment with Defendant. 25. Defendant provided no additional compensation to Plaintiff for this resulting increase in her hours and responsibilities. 26. In the fall of 2006, just five to six months after Plaintiff commenced employment with Defendant, Dr. Herold advised Plaintiff to search for other employment for reasons wholly unrelated to her job performance or her relationship with Defendant. 27. As a result of the circumstances alleged at paragraphs 22 through 26, in addition to others, Plaintiff began attempting to secure other employment in 2007, and diligently searched for openings for Nurse Practitioners specializing in Family Practice throughout the Harrisburg area on both the East and West Shores. 28. The only position Plaintiff was able to secure in almost two years of diligent searching was with a practice (hereinafter referred to as "New Practice") located 4.27 miles from Defendant's office. 29. Plaintiff requested that Defendant agree not to attempt to enforce the Covenant in her employment agreement to allow her to be employed by New Practice in exchange for (1) her promise not to solicit any Defendant patients, (2) her promise not to identify her new employer to any Defendant patients, and (3) her agreement to continue to provide 4 services to patients at Defendant during the transition period between her last day of work for Defendant and commencement of her employment with New Practice, approximately six to eight weeks. 30. Defendant declined Plaintiff's request, has stated its intent to attempt to enforce the Covenant, has so notified New Practice and, upon information and belief, has threatened to sue New Practice if it employs Plaintiff. 31. As a result of Defendant's threatened legal action against New Practice, New Practice has withdrawn its offer of employment but has agreed to hold its position for Plaintiff until February 2010 if she is able to obtain an agreement from Defendant to forego the Covenant. 32. Defendant has further advised Plaintiff that it will not permit her to remain employed at Defendant and that it has hired a replacement for her position, who will commence employment in October 2009. 33. Plaintiff's final day of employment with Defendant is October 1, 2009. 34. If Plaintiff is unable to accept employment with New Practice, she will be unemployed for an indefinite time, placing her at serious financial risk. COUNTI DECLARATORY RELIEF 35. The averments of paragraphs 1 through 34 are incorporated by reference. 36. The Covenant is not enforceable or valid because it is not reasonably limited as to the scope of restricted activities, duration of time and geographical extent. 5 37. The Covenant is not enforceable or valid because Defendant has no legitimate interest to be protected through the Covenant. 38. The Covenant not enforceable or valid because the sole purposes for the Covenant are to eliminate or repress competition and to keep Plaintiff from competing so that Defendant can gain an economic advantage. 39. The Covenant is not enforceable or valid because Defendant will not suffer harm if Plaintiff becomes employed by New Practice. 40. The Covenant is not enforceable or valid because Plaintiff has an important interest in being able to earn a living in her chosen profession with a practice by which she wishes to be employed. 41. The Covenant is not enforceable or valid because Plaintiff will suffer significant economic harm if she is not permitted to accept employment with New Practice. 42. The Covenant is not enforceable or valid because, unlike other medical professionals, Nurse Practitioners are not permitted under the law of Pennsylvania to maintain independent medical practices, but may only perform services for physicians. 43. Plaintiff is therefore limited in her ability to practice her profession to the extent she is able to gain employment with a medical practice. 44. Plaintiff s interests and the harm she would suffer as a result of enforcement of the Covenant substantially outweigh any interest of Defendant in enforcing the Covenant and any potential harm it may claim it would suffer in the absence of enforcement. WHEREFORE, plaintiff seeks a judgment declaring the Covenant invalid and unenforceable. 6 COUNT II INJUNCTIVE RELIEF 45. The averments of paragraphs 1 through 34 and 36 through 44 are incorporated by reference. 46. A strong likelihood exists that Plaintiff will prevail on her claim for declaratory relief. 47. Defendant's interference with Plaintiff's employment with New Practice is continuing and causing irreparable harm to Plaintiff for which a remedy at law for damages is not adequate. 48. Greater injury will result from denying the injunction requested herein than from granting it. 49. Plaintiff has no adequate remedy at law and unless she obtains injunctive relief, she will continue to suffer irreparable harm. WHEREFORE, plaintiff Debra Wewer demands the entry of a decree preliminarily and permanently enjoining Defendant from taking any action to enforce the Covenant or seek damages or other relief from Plaintiff or New Practice, from taking any action to prohibit Plaintiff from accepting employment with New Practice, and from taking any action to interfere with any contract between Plaintiff and New Practice. 7 Respectfully submitted, METTE, EVANS & WOODSIDE By: KAT RYN I SON, I Sup. Ct. I.D. . 28960 klsimpson@mette.com 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Date: September 3, 2009 Attorneys for Plaintiff 8 518816v1 E:O,?c?I b,t WEST SHORE FAM/L Y PRACTICE, P. C. DEBRA A. WEWER, F.N.P.-C. EMPLOYMENT AGREEMENT This Agreement is made and entered into on this, the 0 day of TQARJP O"- 2QQ7, by and between West Shore Family Practice, P.C., a Pennsyi vania Corporation with its principal place of buslnesa located in Nlechanlensburg, PA (hereinafter called "Corporation") and Debra A. Wewar, F.N.P-C. (hereinafter called "Employee"). PREAMBLE WHEREAS, Employee wishes to be employed by Corporation and Corporation wishes to obtain the services of Employee; and WHEREAS, both parties wish to record the terms and conditions of such employment by entering into a written agreement in regard thereto. NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, including Exhibits "A" and "C" attached hereto and made part hereof, the parties, intending to be legally bound hereby, agree as follows: 1. TERM Subject to the provisions for termination as hereafter provided, the term of employment hereunder shall be for a period of one-year commencing on the it day of rcb _ . 2008 or such other date signified by the parties in writing appends hereto, provided Employee has been certified by the Pennsylvania State Board of Nursing as a Certified Registered Nurse Practitioner in the specialty of Family Practice. The Corms of this Agreement shall be automatically renewed for consecutive one year periods thereafter, or for a shorter period as is mutually agreed upon in writing. unless sooner terminated by either party pursuant to the provisions regarding termination. 11. DUTIES A. Certification Requirement. Employee shall at all time maintain cortification as a Certified Registered Nurse Practitioner with the Pennsylvania State Board of Nursing. Page 1 of U B. PATIENT LIST Employee recognizes and acknowledges that the list of Employer's patients is a valuable and unique met of Employer's business and agrees that she will not, daring or after the term of her employment, use said list herself or disclose said list or any part thereof to any person, firm, corporation or entity for any reason whatsoever, nor shall she make any claim of right of ownership to such list after termination of her employment The parties agree that all patient files are the sole property of Employer. IX. COVENANTS OF EMPLOYMENT As conditions of employment. hereunder and In. consideration. of such employment, Employee covenants and agrees: A. That during the term of this Agreement, Employee will devote all of her professional time and best efforts to performing servicesfor thwbensfit of Corporation, S. That Employee will travel to those practice locations and health catre facilities associated with Corporation as Corporation may-from time to time direct, C. That during the term hereof, and for a period of two (2) years thereafter, Ernpleyee will not wlthaut the prier written comont of the Dowd of Directors, directly or indirectly, as a stockholder (except as a stockholder owning beneficially or of record Ism than five percent (5%) of the outstanding shares of any class of publicly traded stock of any issuer), or as an employee, contractor, consultant, associate, partner, proprietor or otherwise, engage in the performance of medical or nurse practitioner services or become interested in, provide services for, advise, render medical or nurse practitioner services for or provide training to the personnel of, or advise for or on behalf of, any tntlty providing or proposing to provide medical or nurse practitioner sorvitea or any other SeMeee now or horoafbbr pay&rmed by Corporption or any affiliated entity, within ten (40) miles of any office of Corporation, or any office or associated facility where Employee renders services or is committed to rendering service, as of the date this Agreement terminates, D. That during the term hereof, and for a period of two (2) years thereafter, Employee will not Page 11 of 34 1• Solicit other employ" of Corporation directly or indirectly, for the purpose of enticing them to leave their employment with Corporation, 2. Employ or cause to be employed other than by Corporation other WTIOYGM of Corpaudkw, 3. Disclose Employee's salary, benefits, bonuses, terms of employment or other such confidential information to any person or entity not otherwise required by law, 4• Fail Winslcafuli plel,rdlWalosure ofte existence of this Agreement and the content of this Section IX to all prospective employers, partners and assoeiatos with whom Employee may. dismiss the pvrformanee of protossional medical or nurse practitioner services or other professional affiliation, and 3. Provide any medical or nurse practiftnerservices or AlWather services now or hereafter performed by Corporation or any affiliated entity (whether clinical, consultation, advisory or otherwise) to any licensed health care provider or other business person or entity with whom Employee came In contact as a direct or indirect result of Employee's employment with Corporation; E. That Employee will: t- Refrain from directly or indirectly using or causing to be used in army manner whatsoever any information of a proprietary or confidential nature (including, without limitation, information regarding office procedures, patient names and -patient addresses) other than In connection with fulfilling Employee's obligations hereunder and, upon termination of Employee's employment, forthwith return to Corporation and not retain or fumish to any third party, either by sample, facsimile or byverbal communication, such InforMartion, to the extent that it has been reduced to writing (including any and all copies thereof), together with all copies of all records, forms and charts of every kind, whether confidential or otherwise, 2. Refrain from any disparagement, direct or indirect, through innuendo or otherwise, of Corporation or any of its employees, officers, directors, contractors or owners, and Page 12 of 34 3• Refrain from soliciting the business of any patient (or any member of a patient's family as defined under Medicare regulations) or entity for whom Corporation has provided service at any time, or attempt to Induce any such patient or entity to cease being treated by Corporstion; F. That during the term hereof, Employee will not, without the prior written consent of the Board of Directors in each case: • Participate actively or Invest in any other business interest related to the luaviding of medical or nurse pmctitionersenrices, or any other related product or service, except for Investments in widely held publicly traded securities, 2.. Borrow money from, or lend to, patients, individuals or firms (except commercial fending institutions) to whom Corporation provides services or with whom Corporation does business, I Exchange the services of Corporation or Employee in return for goods, products or services, or 4. Copy any patent files or address lists; and G-' That Employee will promptly and voluntarily advise Corporation of any activities which might result in a violation of any-rules, regulations or Statutes concerning or prohibiting the referral of patients or other "related party" conduct. Employee represents and warrants % Corporation that notwithstanding the Operation of the covenants contained in Subsections IX(C) and 1X(D) above, upon the termination of OMPlOyment hereunder, Employee will be able to support herself for the purpose of earning a livelihood. If Employee shall breach any of the covenants in Sections IX(C) and IX(D), then the two (2) year period specified therein shall be tolled during the period of such breach and shall resume only after all breaches by Employee of such covenants have ceased. If the Provisions of Subsections 1X(C) or IX(D) of this Agreement should be held to be invalid, illegal or unenforceable by a court of competent jurisdiction because of the time limitation or geographical area therein provided, such provisions shall nevertheless be effective and enforceable for such period of time andfor such geographical area as may be held to be reasonable by such court. PuVw 13 of 34 X. INJUNCTIVE RELIEF Because the services to be performed by Employee hereunder are of a special, unusual, confidential and extraordinory character which randers them unique, and because Employee will acquire, by reason of Employee's employment and association. with Corporation, an extensive knowledge of Corporation's patients, operating procedures and other confidential information, the parties recognize and acknowledge that, In the event of a. breach or throat of breach by Employee of any of the terms and provisions contained in Subsections IX(C), IX(D), IX(E) or 1X(F) of this Agreement, monetary damages alone to Corporation would not be an adequate remedy for a breach of any of such terms and provisions. Therefore, It is agreed Hut In the event of a breach orthreatof a breach of any of the provisions contained In said subsections by Employee, Corporation shall be erMed to an immediate injunction from any court of competent jurisdiction restraining Employee, as well as any third parties including successor employers and partners of Employee whose joinder may be necessary to effect full and complete relief, from committing or continuing to commit a broach of such provisions without the showing or proving of actual damages. Any preliminary injunction or restraining order shall continue in full force and effect until any and all disputes between the parties to such injunction or order regarding this Agreement have been finally r4:olved. Employee hembywaives any right Employee may have to require Corporation to post a bond or other s•curity wlfh respect to obtaining or continuing any such injunction or temporary restraining order and, further, hereby releases Corporation, its officers, directors, employees and stockholders from and waives any claim for damages againM them whiah Employee might have with respectto Corporation's obtaining In good faith any injunction or restraining order pursuant to this Agreement. In addition to any equitable relief provided for in this Section, Employee agrees to pay to Corporation as liquidated damages for violation of any of the terms and provisions contained in Subsections IX(C), IX(D), IX(E) or IX(F) of this Agreement the sum of seventy-five-thousand dollars (=75,000.00), which the parties agree is a reasonable estimate of the damages to Corporation occasioned by such breach, recognizing that such damages are not otherwise capable of precise calculation. XI. INDEMNIFICATION Employee covenants and agrees to indemnify and hold harmless Employer, Page 14 of 34 and Employer's employees, officers and stockholders, from and againstany claims, demands, liability, lass, cost or expense (including reasonable attorneys' fees) arising from or in any manner connected with Employee's breach of any term or provision of this Agreement, acts or omissions, negligence or professional malpractice, Intentional or willful misconduct Following the termination of this Agreement for any reason, Employee covenants and agrees to indemnify and hold harmless Employer, and Employees employees, officers, and stockholders, from and against any claims, demands, liability, loss, cost or expense (including reasonable ¦ u,nv. ?. uner ,su ammnne? with or ree L p arty Uverony=X Ficaln or in repaid by Employer !u a,%? Federal, State ar Cammomial Third P2dy Payer relating in any manner to Emplvyvv'n bramuh of tolling and deaurnentation responsibilities described in Sections II(B) and II(C)(6) with respeetto medical Services rendorod by Employee to patients of Employer. XII. NOTICES All notices required by this Agreement shall be in writing and shall b&-sent by certified mail, return receipt requested as follows: A. Corporation: West Shore Family Practice, P_C. 6375 Mercury Drive Suite 200 Mechanicsburg, PA 17050 With copies to: April L. McClain, Esq. Artz Health Law 200 North Third Street, Suite 12-B Harrisburg, PA 17101 And Cavanaugh Michaels, Ltd. 601 East Simpson Street Mechanicsburg, PA 17055 Page 15 of 34 B. Employee: Debra A. Wewer, F.N.P.-C. 46 Waverly Drive Hummelstown, PA 17036 XIII. RESOLUTION OF DISPUTES `d?"`" (Employee initials) This resolution of disputes clause shall apply to any and all claims arising out of or relating to this employment agreement or the employment relationship and shall include all Claims which could be joined in any action related to this agreement. A. The parties shall attempt in good faith to resolve any and all disputes ("Disputes') arising out of Employee's employmentwith Corporation or otherwise relating in any way to this Agreement informally after written notion of the nature of the dispute is given. The parses may elect to submit any dispute to non-binding Mediation. B. Any unresolved Dispute shalt be determined by common law arbiUation In Cumberland County, Pennsylvania and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties specifically intend that this agreement to arbitrate shall extend to, among other things, claims arising under this Agreement or under any federal or state statute governing employment or cM1 rights. C. The parties shall agree upon one arbitrator to settle every Dispute. However, if the parties are unable to agree on an arbitratorwithin thirty (30) days after the request for arbitration, either party may petition for the appointment of an arbitrator by the Court of Common Pleas of Cumberland County, Pennsylvania. The decision of the arbitrator who] I be final and not subject to review by any court except on the grounds stated in the applicable arbitration statute. D. The arbitrator shall be without authority to award punitive damages except with respect to fraudulent or dishonest conduct of Employee resulting in harm to third parties. XIV. WAIVER- MODIFICATION This Agreement or any provision hereof, may be amended, supplemented or modified only by a writing signed by both parties and may be waived only by a writing signed by the party to be bound thereby. A written waiver of any Page 16 of U Provision shall be valid only in the instance for which given and shall not be deemed to be a continuing waiver or construed as a waiver of any other provision. XV. ASSIGNMENT This Agreement, being for the performance of personal services, may not be assigned by Employee in whole or in part. Corporation may assign this Agreement, including all covenants and conditions hereto, without Employee's consent to any person or entity, including but not limited to any entity that may purchase, merge with or engage in any other fundamental corporate transaction with Corporation. XVI. SINERABILITY If any term, provision, covenant or Condition of this Agreement Is held by a court of competent jurisdiction to be invar'drd, void or unenforceable, -the nest of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. XVII. SURVIVAL The provisions of this Agreement which by their terms are designed to survive the termination of Employee's employmentwith Corporation shall specifically survive. XVIII. GOVERNING LAW As express additional inducement by Employee to Corporation to enter into this agreement, Employee agrees that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania and shall be construed in accordance therewith, and that as a matter of forum selection, jurisdiction regarding all disputes under or relafed in any way to this Agreement shall be resolved under the arbitration provisions hereunder and that any permitted court action (e.g. to enforce arbitration) shall be brought exclusively in the Court of Common Pleas of Cumberland County Pennsylvania, or the United States District Court for the Middle District of Pennsylvania and no other court (Remainder of page irriantionally blank) Page 17 of 34 XiX. ENTIRE AGREEMENT This Agreement constitutes and contains the entire agreement and understanding between the parties with respect to the subject matt+r hereof and supersedes any and all prior agreements, understandings and negotiations relating thereto. No promise, understanding, representation, inducement, condition or warranty not set forth herein has been made or relied an by any party hereto IN WITNESS WHEREOF, Corporation and Employee have executed this Agreement on the day and year first above written. CORPORATION. WEST SHORE FAMILY PRACTICE, P.C. i?W Richard C. Harker, M.D., President Attest: Cres?to C Herold, Jr., M.D., Secretary EMPLOYEE: C?A' 0- -- tom- rAP- Debra A. Weaver, F.N.P.-C. -moubkkA A. *&tO" Witness Page 1 B of 34 I t VERIFICATION I, DEBRA WEWER, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. ? - 3 - v 9 ) DATED: DEBRA A. WEWER _ARy i't DEBRA A. WEWER, Plaintiff V. WEST SHORE FAMILY PRACTICE, P.C., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 09-6047 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION, AND REQUEST FOR EXPEDITED RULING DUE TO IMMINENCY OF IRREPARABLE HARM ORDER OF COURT AND NOW, this 14`x' day of September, 2009, upon consideration of the attached motion, a hearing is scheduled for Thursday, September 24, 2009, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Kathryn L. Simpson, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 y rney for Plaintiff David F. O'Leary, Esq. One South Market Square 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Defendant rc `vY esley Ole Jr., J. M=,T I La 0 ?Nc P? dJTARY 2999 SEP 16 PH 3: Oro' Cum ," DEBRA A. WEWER, Plaintiffs V. WEST SHORE FAMILY PRACTICE, P.C., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW AND EQUITY NO. 09-6047 JURY TRIAL DEMANDED PRAECIPE TO FILE ACCEPTANCE OF SERVICE TO THE PROTHONOTARY: Please file the attached Acceptance of Service of the Complaint by David F. O'Leary, Esquire, on behalf of Defendant, West Shore Family Practice, P.C. Respectfully submitted, METTE, EVANS & WOODSIDE 11 By: KA HR SIMP ON, F Sup. Ct. I. o. 28960 klsimpson@mette.com 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Debra A. Wewer Date: September 16, 2009 14, r DEBRA A. WEWER, Plaintiffs V. WEST SHORE FAMILY PRACTICE, P.C., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW AND EQUITY NO. 09-6047 JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I,.Bemlfs'?F. O'Leary, Esquire, accept service of the Complaint in the above-captioned action on behalf of Defendant, West Shore Family Practice, P.C., and certify that I am authorized to do so. Date: I ?6) -/; ? .-DeWMT. O'Leary, Esquire Rhoads & Sinon LLP One South Market Square 12th Floor, P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 518998v1 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David F. O'Leary, Esquire Rhoads & Sinon, LLP One south Market Square 12th Floor, P.O. Box 1146 Harrisburg, PA 17108-1146 By. Date: September 16, 2009 METTE, EVANS & WOODSIDE ItAT?R A. SIMPSON, ES Sup. t.I. o. 28960 klsimpson@mette.com 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Debra A. Wewer 5193130 OF THE F ,t7i RY 6 SEP 17 F c: 0 7