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HomeMy WebLinkAbout04-2494IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HOFFMAN MECHANICAL, INC. VS. DOUGLAS L. DEIMLER NO. QLl - 2g91l 1 lui? /E/L? JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue Writ of Summons upon Douglas L. Deimler. By: W??? erbe rt P. Henderson, II Attorneys for Plaintiff 36 East King Street Lancaster, PA 17602 (717) 295-9159 Attorney I. D. No. 56304 REIDENBACH, HENDERSON(& P?T ?,J Dated: WD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WRIT OF SUMMONS - CIVIL ACTION TO THE SHERIFF OF LANCASTER COUNTY: 04 - aygy, Glut. `-T HOFFMAN MECHANICAL, INC. Plaintiff VS. DOUGLAS L. DEIMLER Defendant WRIT OF SUMMONS To: Douglas L. Deimler 409A First Street P.O. Box 487 Summerdale, PA 17093 You are hereby notified that Hoffman Mechanical, Inc., Plaintiff, has commenced an action against you. Date: June 1, 2004 &Zko"? . CURT LONG, PROTHO Y? Y Date: J1 wr 2, ;Looy BY Q? e -Cgoz ? (Deputy) Reidenbach, Henderson & Pecht By: Herbert P. Henderson, II, Esquire, ID956304 Attorneys for Plaintiff(s) TRUE COPY FROM RECORD :n T"Nn+y whereof, I here unb aet nor hw md the sow SaW at Car"' Na T m. ,.» 016011 F(uttwnw bry SHERIFF'S RETURN - REGULAR CASE NO: 2004-02494 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOFFMAN MECHANICAL INC VS DEIMLER DOUGLAS L RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon DEIMLER DOUGLAS L the DEFENDANT , at 1914:00 HOURS, on the 21st day of June 2004 at 409A FIRST STREET SUMMERDALE, PA 17093 by handing to CINDY GREEN, WIFE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.04 Affidavit .00 Surcharge 10.00 .00 39.04 Sworn and Subscribed to before me this ay r? day of ,tn.c 2ft f?? A.D. rbth otar?vuy So Answers: R. Thomas Kline 06/22/2004 REIDENBACH HENDE ON PECHT By: De ty Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. No. 2004-2494 P VS. DOUGLAS L. DEIMLER NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pagers, 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 defense 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 TO ELIGIBLE PERSONS AT A REDUCED :FEE OR NO FEE. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 TELEPHONE NO: (717) 240-6200 REIDENBACH, HENDE]/ ON & PECHT By: 94? Herbert P. Henderson, II, Esquire Attorney for Plaintiff Attorney I.D.# 56304 36 East King Street Lancaster, PA 17602 (717) 295-9159 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. No. 2004-2494 P VS. DOUGLAS L. DEIMLER 1. Plaintiff, Hoffman Mechanical, Inc. (hereafter HMI), is a Pennsylvania business corporation with its principal place of business at 3 Keystone Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Plaintiff, Creative Distribution, Inc. (hereafter CDI), is a Pennsylvania business corporation with its principal place of business at 3 Keystone Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant, Douglas L. Deimler, is an adult individual, currently residing at 409A First Street, Summerdale, Cumberland County, Pennsylvania 17093. 4. At all times relevant hereto, HMI was affiliated with CDI in various matters including specifically the sale, installation and servicing of water filters for softdrink beverage control systems, hotels, restaurants and various other businesses needing water filtration and like services. S. At all times relevant hereto, CD-1 would sell and distribute and HMI would install and service the scftdrink beverage control and water filtering systems. 6. At all times relevant hereto, Defendant was former employee of HMI and CDI. 7. It is believed, and therefore averred, that despite Defendant having sold his business known as Beverage Equipment Specialists (hereafter "BES"), as set forth hereafter, Defendant continued to operate his own beverage control and filtering system business in competition with HMI and CDI and was as of June 30, 2004, either individually and/or in conjunction with seven (7) or more companies in competition with HMI and CDI. 8. on or about June 25, 2002, Plaintiff presented Defendant with three documents: (a) Offer to Purchase and Agreement to Sell Defendant's business known as Beverage Equipment Specialists (hereinafter "Offer to Purchase"), (b) Memorandum setting forth terms and conditions under which Defendant would continue as an employee of HMI and CDI (hereinafter "Terms and Conditions of Employment") and (c) an Employee Confidential Information and Invention Agreement (hereinafter "Confidentiality Agreement") which contained within it a non-competition clause. 9. Plaintiff believes, and therefore avers, that Defendant acknowledged his acceptance of the Offer to Purchase his business known as Beverage Equipment Specialists ("BES") when he affixed his signature thereto on June 27, 2002. A true and correct copy of the Offer to Purchase is attached hereto, incorporated herein by reference as if set forth at length and marked Exhibit "A". 10. Plaintiff believes, and therefore avers, that Defendant accepted employment and then executed the Terms and Conditions of Employment on June 26, 2002. A true and correct copy of the Terms and Conditions of Employment Memorandum is attached hereto, incorporated herein by reference as if set forth at length and marked Exhibit "B". 11. As a condition of CDI purchasing Defendant's business and Defendant's employment with HMI and CDI, on or about July 1, 2002, Defendant executed the Employee Confidential Information and Inventions Agreement dated June 25, 2002, which Agreement provides in relevant part: 5. Business Opportunities. During the terms of this Agreement, if Employee becomes aware of any project, investment, venture, business or other opportunity (any of the preceding, collectively referred to as an "opportunity" that is similar to, competitive with, related to, or in the same field Employer, or any project, :investment, venture, or business of Employer, then Employee shall so notify Employer immediately in writing of such Opportunity and shall use Employee's good-faith efforts to cause Employer to have the Opportunity to explore, invest in, participate in or otherwise become affiliated with such Opportunity. A true and correct copy of Employee Confidential Information and Inventions Agreement (hereafter "Confidentiality Agreement") is incorporated herein by referenced as thoug;? set forth at length and marked Exhibit "C". 12. Defendant's Confidentiality Agreement further states in that: relevant part: 7. Non-Competition. Employee agrees that, during employment with Plaintiff, Employee will not directly or indirectly compete with Plaintiff in any way and will not act as an officer, director, employee, consultant, lender, or agent of any entity which is engaged in any business of the same nature as or in competition with the business which Plaintiff is now engaged or in which Plaintiff becomes engaged during the term of Employee's employment. Employee further agrees to perform for Plaintiff such duties as it may designate from time to time and will devote his or her full time and efforts to the business of Plaintiff. A true and correct copy of Defendant's Confidentiality Agreement has been previously attached as Exhibit "C" 13. Defendant's Confidentiality Agreement further states that: 8. Non-Solicitation. Employee agrees that during Employee's employment with Plaintiff and for two (2) years following the termination, for any reason, of employment, Employee shall not, either on Employee's behalf or on behalf of any other person or entity, directly or indirectly, (i) hire, solicit or encourage or induce any employees, directors, consultants, contractors or subcontractors to leave the employ of Plaintiff, or (ii) solicit, induce, encourage or entice away or divert any person or entity which is then a customer of Plaintiff and which was a customer of Plaintiff during the time of Employee's employment. (Emphasis added) A copy of defendant's Confidentially Agreement was previously attached as Exhibit "C" 14. In addition, in executing the Confidentially Agreement, Defendant acknowledged the following: 10. General Provisions. 8.3 [sic.] Remedies upon Breach. Employee acknowledges and agrees that damages will not be an adequate remedy in the event of a breach of any of Employee's obligations under this Agreement. Employee therefore agrees that Plaintiff shall be entitled (without limitation of any rights or remedies otherwise available to it and without necessity of posting a bond) to obtain an injunction from any Court of competent jurisdiction prohibiting the continuance or recurrence of any breach of this Agreement. The failure of Plaintiff to promptly institute legal action upon any breach of this Agreement shall not constitute a waiver of that or any other breach hereof. 8.4 [sic.] Attorneys' Fees. In the event of any litigation concerning controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorneys' fees, and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. The "prevailing party" means the party determined by the Court to have prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor judgment is rendered. Further, in the event of any default by a party under this Agreement, such defaulting party shall pay all the expenses and attorneys' fees incurred by the other party in connection with such default, whether or not any litigation is commenced. A copy of Defendant's Confidentially Agreement has been previously attached as Exhibit "C". 15. As the representative responsible for the sales side of Plaintiff's beverage control and filter system business, Defendant was responsible for servicing the existing book of business, following leads provided by Plaintiff through appointments, "cold calls", on-site visits, and presenting company proposals. Defendant was also permitted to pursue contacts he made on his own. 16. As a part of Defendant's employment with Plaintiff, Defendant obtained confidential trade secret information belonging to Plaintiff, including information on: policies, practices, price lists, and client lists; client files, accounts, and reports which contained, among other things, the names, contacts, addresses and phone numbers of Plaintiff's clients; client leads and referrals; expiration lists and expiration data; and financial and budget information. 17. As a result of a violation of company policies, Defendant's failure to perform as required, and an abuse of company services such as cellular phones and computers for his own personal use, Plaintiff was left with no alternative but to terminate Defendant on June 5, 2003, effective June 4, 2004. 18. Plaintiff believes, and therefore avers, that it did, on June 5, 2003, present Defendant with an Acknowledgment of Termination which Acknowledgment Defendant refused to sign. A true and correct copy of the presented Acknowledgment is attached hereto, incorporated herein by reference as though set forth at length and marked Exhibit "D". 19. Plaintiff believes, and therefore= avers, that within twenty-four hours after his termination by Plaintiff, on or about June 5, 2003, Defendant installed a water filtration system in a dishwasher at the New Cumberland Doc Holiday's Restaurant which was, at the time, one of Plaintiff's customers. 20. Plaintiff believes, and therefore avers, that on or about June 12, 2003, Plaintiff received notification from a large customer, "Auntie Anne's Pretzels", that it: would no longer be using Plaintiff and that "Doug Deimler would know this information". 21. Plaintiff believes, and therefore avers, that on or about June 12, 2003, Plaintiff's representative, Bill Yost, appeared at a McDonald's to change three (3) water filter sets. When Mr. Yost was told that if the work was not being done for Doug Deimler that he was not permitted to "change out the filters" at which time Mr. Yost was provided a list of nine (9) McDonald's Restaurants which would no longer being using Plaintiff's services. 22. Plaintiff believes, and therefore avers, that on or about June 30, 2003, Plaintiff received correspondence from McDonald's President, Allen R. Hassman, dated June 27, 2003, confirming the termination of Plaintiff's filter change services at his nine (9) McDonald's locations. 23. Plaintiff believes, and therefore avers, that on or about June 12, 2003, Mr. Steve Courtney, the owner of four (4) McDonald's Restaurants canceled his services with Plaintiff stating that he had an agreement with Doug Deimler to do further work. 24. Plaintiff believes, and therefore avers, that to date Defendant has been successful in convincing a number of Plaintiff's clients to terminate their services with Plaintiff and utilize Defendant's services or that of the new company with whom he may be working. 25. Plaintiff believes, and therefore avers, that the lost clients represent $434,219.03 a net loss of $217,109.51 per 26. Plaintiff believes, had been maintaining a "side Plaintiff which accounted for low sales volume. 27. Plaintiff believes, in gross sales which translate into year for Plaintiff. and therefore avers, that Defendant Business" in competition with Defendant's :Lack of performance and and therefore avers, when Defendant learned that Plaintiff had discovered his :impropriety, Defendant improperly accused Plaintiff's principal of wrongdoing as a "preemptive strike" against Plaintiff in an attempt to thwart her from commencing litigation against him for the violations of his Confidentiality Agreement and tortious interference with business relationships. 28. Plaintiff believes, and therefore avers, that Defendant is, in addition to soliciting Plaintiff's clients on behalf of himself and/or his new employer, in direct violation of his Confidentiality Agreement, Defendant has also disparaged and otherwise maligned Plaintiff and Plaintiff's principal, Emily Hoffman. 29. Plaintiff believes, and therefore avers, that when Defendant was still in the employ of Plaintiff that Defendant prepared to engage in, was engaging in, among other things, the following acts: (a) removal of original, copied, or computerized Plaintiff documents and information, conversion of the information contained confidential Plaintiff business records, specifically including, but not limited to, the names, contacts, addresses, phone numbers, pricing information and other confidential information about Plaintiff clients and their accounts with Plaintiff; (b) soliciting Plaintiff's clients to terminate their relationship with Plaintiff and transfer their business with him and/or his new employer; (c) representing, buying from, acting as agent for and as otherwise helping or assisting Plaintiff's suppliers, including but not limited to, the distributors and supply companies with whom Plaintiff does and/or did business; and (d) other such acts contrary to the terms of the Confidential Agreement and the law. 30. Plaintiff believes, and therefore avers, that Defendant, from the date of his signing the various Agreements attached as Exhibits "A", "B", and "C", did not ever cease operating business as his alter ego, BES, and did, in fact, continue to operate a "side business" separate and distinct from that which he was being paid by Plaintiff to service and/or maintain, taking for himself, business and profits which rightfully belonged to Plaintiff pursuant to the terms of the Agreements which he entered into at the time he sold BES. 31. Plaintiff believes, and therefore avers, that Defendant's conduct was and is in furtherance of a scheme to obtain funds to remove himself and his business, BES, of financial liabilities it was under at the time and never intended to work for Plaintiff for any lengthy period of time. 32. Plaintiff believes, and therefore= avers: (a) Defendant has possession or control of Plaintiff's confidential trade secrets including, but not limited to, original and/or copied and/or computerized records, documents, client lists, client information, expiration lists, expiration data, proprietary information, and other trade secures; (b) Defendant has used and will continue to use, confidential client information to solicit accounts to divert the business of Plaintiff from Plaintiff to Defendant and/or his new employer; (c) Defendant has been and will continue to represent, buy from, act as agent for, and otherwise help or assist Plaintiff's suppliers and distribution including, but not limited to, Cuno Corporation, with whom Plaintiff was listed as a distributor. 33. Plaintiff believes, and therefore avers, that Defendant will otherwise continue to engage in acts constituting breach of his Confidentiality Agreement, a breach of his fiduciary duty, and other tortuous conduct including conversion of trade secrets, unfair competition and intentional interference with contractual relations. COUNT I PLAINTIFF vs. DEIMLER BREACH OF OFFER TO PURCHASE AGREEMENT 34. The averments of Paragraph 1 through 33 are incorporated herein by reference as though set forth at length. 35. Plaintiff did, by and through its principal, Emily F. Hoffman, offer to purchase from Defendant's business known as Beverage Equipment Specialists (BES). 36. Plaintiff believes, and therefore avers, that the terms and conditions of the purchase included Defendant's maintaining $9,500.00 in accounts receivable; Plaintiff assuming approximately $8,000.00 in liabilities; Plaintiff receiving $6,500.00 in inventory; Plaintiff purchasing the name "Beverage Equipment Specialists", the BES customer last, BES accounts, and good will as well as Defendant executing a Confidentiality/Non- Compete Agreement. A true and correct copy of the offer and acceptance outlining the above terms and conditions agreed to by the parties has previously attached as Exhibit "A". 37. Plaintiff believes, and therefore avers, that Defendant breached the contract where under Plaintiff was purchasing Defendant's business inasmuch as he continued to operate a separate business under the name Beverage Equipment Specialist; he failed to transfer $6,500.00 worth of inventory, instead transferring only $3,000.00 in inventory; and breaching the Confidentiality/Non-compete Agreement. 38. Plaintiff believes, and therefore avers, that it performed fully as required under the Agreement including, but not limited to, assuming and paying in full Defendant's $8,000.00 liabilities. 39. Plaintiff believes, and therefore avers, that Defendant's decision to continue to operate as Business Equipment Specialists outside the auspices of Plaintiff and his further failure to transfer all remaining assets valued at $6,500.00, as required, is a material breach of the parties' contract. 40. Plaintiff believes, and therefore avers, that as a result of Defendant's breach of the Offer to Purchase Agreement for BES, Plaintiff has been injured in the amount of $11,500.00. 41. Plaintiff believes, and therefore avers, that had it known Defendant was going to continue to operate independently and outside of the auspices of Plaintiff, that it never would have purchased Defendant's business and would have never employed Defendant pursuant to the terms and conditions of the Employment Offer previously attached as Exhibit "B" to the Complaints. 42. Plaintiff believes, and therefore avers, that as a result of Defendant's breach of the Agreement to Sell and purchase BES that Plaintiff has suffered damages in the amount of $11,500.00 plus costs. COUNT II PLAINTIFF vs. DEIMLER BREACH OF EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT 43. The averments of Paragraph 1 through 42 are incorporated herein by reference as though set forth at length. 44. Plaintiff believes, and therefore avers, that as a condition of its purchasing BES and offering to employ Defendant as set forth in the Offer of Employment attached previously as Exhibit "B", Defendant was to comply with all terms and conditions of the Employee Confidential Information and Inventions Agreement, the same of which has been previously attached as Exhibit "C". 45. For reasons set forth previously herein, Plaintiff believes, and therefore avers, that Defendant has violated his Confidentiality Agreement with Plaintiff. 46. Plaintiff believes, and therefore avers, that Defendant continues to violate his contractual obligations under his Confidentiality Agreement. 47. Plaintiff believes, and therefore avers, that as a consequence of the foregoing, Plaintiff has suffered and will continue to suffer financial loss. COUNT III PLAINTIFF vs. DEIMLER MISAPPROPRIATION OF TRADE SECRETS 48. The averments of Paragraph 1 through 47 are incorporated herein by reference as though set forth at length. 49. Plaintiff maintains secret administrative, financial and budgetary reports as well as client lists and reports including expiration lists and pricing data. 50. The confidentiality of this information is of critical importance and value to Plaintiff. 51. All of this information belonged to or was purchased by Plaintiff prior to June 2003. 52. Plaintiff took reasonable steps and precautions to guard this trade secret information by requiring Defendant to sign the Confidentiality Agreement as a condition of his employment with Plaintiff. 53. Defendant learned of and/or utilized trade secrets proprietary to Plaintiff while employed in a position of trust and confidence by Plaintiff. 54. Defendant's conduct, as outlined above, constitutes misappropriation of Plaintiff's proprietary information and trade secrets. 55. Plaintiff believes, and therefore avers, that as a consequence of Defendant's contacts, Plaintiff has suffered and will continue to suffer financial loss. COUNT IV PLAINTIFF vs. DEIMLE;R BREACH OF FIDUCIARY DUTY 56. The averments of Paragraph 1 through 55 are incorporated herein by reference as though set forth at length. 57. Plaintiff believes, and therefore avers, that Defendant has violated the common law fiduciary duties of loyalty and confidentiality Defendant owed to Plaintiff arising under his employment with Plaintiff in that, while employed by Plaintiff, Defendant continued to maintain a separate "book of business" in direct competition with Plaintiff and further that Defendant secretly planned to leave the employ of Plaintiff and schemed to solicit Plaintiff's clients, and to deprive Plaintiff the confidentiality of its records and trade secrets. 58. Plaintiff believes, and therefore avers, that Defendant has violated the common law fiduciary duties of loyalty and confidentiality he owed Plaintiff arising under his employment with Plaintiff in that he continues to use the good will and confidential information he obtained from his Association and employment with Plaintiff to solicit Plain---iff's clients in an attempt to divert business from Plaintiff to himself or his employer. 59. Plaintiff believes, and therefore avers, that such conduct by Defendant was and is wanton, wilful and with reckless disregard for the legal rights of Plaintiff. 60. Plaintiff believes, and therefore avers, that as a consequence of Defendant's conduct, Plaintiff has suffered and will continue to suffer great financial loss. COUNT V PLAINTIFF vs. DEIMLER UNFAIR COMPETITION 61. The averments of Paragraph 1 through 60 are incorporated herein by reference as though set forth at length. 62. Plaintiff believes, and therefore avers, that the foregoing conduct of Defendant constitutes an unfair method of competition. 63. Plaintiff believes, and therefore avers, that such misconduct by Defendant was and is wanton, wilful, and with reckless disregard for the legal rights of Plaintiff. 64. Plaintiff believes, and therefore avers, that as a consequence of the foregoing, Plaintiff has suffered and will continue to suffer financial loss. COUNT VI PLAINTIFF vs. DEIMLE:R INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 65. The averments of Paragraph 1 through 64 are incorporated herein by reference as though set forth at length. 66. Plaintiff believes, and therefore avers, that at the outset of Defendant's employment with Plaintiff, Defendant knew of the existence of significant ongoing Agreement in accounts that provide water filtration sales and beverage control services on a recurring basis. 67. Plaintiff believes, and therefore avers, that both prior to and subsequent to Defendant's termination from Plaintiff's employment that Defendant contacted clients of Plaintiff and relayed to them untrue and disparaging statements intended solely to disrupt and otherwise discourage those companies' relationships with Plaintiff. 68. Plaintiff believes, and therefore! avers, that Defendant's conduct constitutes interference with the various contracts including, but not limited to those set forth previously within the Complaint, Auntie Anne's Pretzels, McDonald's and Doc Holiday's Restaurant. 69. Plaintiff believes, and therefore avers, that Defendant had no privilege or justification for such interference. 70. Plaintiff believes and therefore avers, that such conduct by Defendant was and is wanton, wilful and with reckless disregard for the rights of Plaintiff. 71. Plaintiff believes, and therefore avers, that as a consequence of the foregoing, Plaintiff has suffered and will continue to suffer financial loss. WHEREFORE, by virtue of the foregoing acts complained of in Counts I, II, III, IV, V and VI, Plaintiff, Hoffman Mechanical, Inc., and Creative Distribution, Inc., respectfully requests money damages against Douglas L. Deimler i:n an amount in excess of $25,000.00 and as proven at trial; reasonable attorney fees pursuant to Paragraph 10.8.4 of Defendant's Employee Confidential Information and Invention Agreement; punitive damages against Defendant; a permanent injunction ordering Defendant, directly or indirectly, and whether alone or with others, including any officer, agent, employee and/or representative of Defendant, from unlawfully competing with Plaintiff; and any other relief that the Court may deem just and appropriate. Respectfully submitted, REIDENBACH, EfENDE /ON & PECHT By. / - Herbert P. Henderson, II, Attorney I.D. No. 56304 36 E. King Street Lancaster, PA 17602 (717) 295-9159 Attorneys for Plaintiff To: Doug Deimler From: Emily Hoffman Date: June 25, 2002 Emily F. Hoffinan offers the following: Assets A/R $9,500 (Doug keeps) Liabilities A/P (Curio) approx. $8,000 (Pay in Full to CUNO) Inventory $6,500 (Same as A/P CDI Obtains ownership) Creative Distributiofl will receive the following: Name: Beverage Equipment Specialists (BES) Beverage Equipment Sepecialists (BES) Customer List Accounts Act format (good will) Remaining Inventory Confidential/Non-compete agreement This offer is good for twenty-four (24) hours. This offer is under the condition that Cuno offers Creative Distribution, Inc. a distributorship and Curio's customer base from Beverage Equipment Specialist is directed toward Creative Distribution, Inc. I accept the above and the transaction will take place: Douglas Deimler Date 6 -z7-0z- To: Doug Deimlerfrom: Date: June 259 2002 Employee Salary Allowance ($500 per month) Benefits cafeteria plan does not need insurance Allowance Gas Card (approx worth $1,50042,000 a year) Cell Phone ($1,800.00) Creative Distribution Inc. $ 40,000 $ 6,0000 $ 1,500 (approx) $ 1,800 (approx) Bonuses: A bonuses will be paid if the following goals are met at profit margin of at least 45%: 1. Over $100,000.00 of business July- December 2002. $1,000.00 2. Over $ 70,000 of business Jan-March This includes residual from net new business from previous year and residual from retained business that totals of at least $15,000.00 a month (Three (3) months $45,000.00 which is more than ''/z) $1,000.00 *Since this is a new venture and unknown until sales plan is cornpleted the following bonuses there after will be determine. Net new business each month of $8,000.00 would result in a final sales goal for each month to be Your monthly sales accountability will be: Au July 0 Sept 000 $7 Oct $8,000 Nov $8,000 Dec $8,000 $3 00 $12,000 Residual business Net new , Net new Net new Net new sidual +R Net new +Residual +Residual +Residual +Residual e I accept the above position at Creative Distribution Inc. Douglas Deimler Date ,& sHe ?j? EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT VA This Agreement is entered into as of June 25,2002 between Hoffman Mechanical, Inc. (HMI) and/or Creative Distribution, hie (CDI) [Company], and Doug, Deimler ("Employee"). INTRODUCTION Employee is employed or is contemplating employment with HMI and/or CDI . In connection with this employment, Employee has had, or will have, access to certain confidential information and trade secrets of HMI and/or CDI, and may in the course of employment with HMI and or CDI, participate in discovering or conceiving an invention. As a condition of Employee's employment or continued employment, and effective as of the date that Employee's employment first commenced, Employee agrees as follows: AGREEMENT Definitions. As used in this Agreement, the following terms shall have the following meanings: "Agreement" means this Agreement and any attachments hereto, and any modifications that are made to this Agreement in accordance with the terms hereof; "[Company]" means [Hoffman Mechanical, hie. and [Hoffman Mechanical, Inc's] affiliated company (Creative Distribution, Inc.) and any other subsidiaries or affiliates thereof. Employee's employment" means Employee's employment with [Hoffman Mechanical, Inc.] or any other [Hoffman Mechanical, Inc.] company or entity. Invention means any invention, discovery, know-how, idea, trade secret, technique, formula, machine, method, process, use, apparatus, product, device, composition, code, design, program, confidential information, proprietary information, or configuration of any kind, which is discovered, conceived, developed, made or produced by Employee (alone or in conjunction with others) during the duration of Employee's employment, and which: a) Relates at the time of conception or reduction to practice of the Invention, in any manner, to the business of HMI and or CDI, including actual or demonstrably anticipated research or development; or b) Results from or is suggested by work performed by Employee for or on behalf of HMI and/or CDI; or c) Results, in whole or in part, from the use of' equipment, supplies, facilities, information, time or resources of HMI and/or CDI C 2001 www.lawthatworks.com -1- The term "Invention" shall also include any improvements to in Invention. The term "Invention" shall not be limited to the definition of a patentable or copyrightable invention as contained in the United States patent or copyright laws. "Information" means (1) all information encompassed in all Inventions, and (2) all forms and types of financial, business, scientific, technical, economic, sales, marketing or engineering information of HMI and/or CDI, that is not generally available to the public at large with the knowledge and consent of HMI and/or CDI, regardless of whether such information would be enforceable as a trade secret or the copying of which would violate copyright or patent laws or be enjoined or restrained by a court as constituting unfair competition. Information shall be interpreted broadly, and includes, without limitations, strategic and business plans, financial information, projections, pricing information, proposals, customer lists, research, experiments, records, reports, recommendation, manuals, policies, findings, evaluations, forms, designs, drawings, specifications, evaluations, computer programs, prototypes, methods, processes, procedures, software or other confidential information or intellectual, and whether stored, complied, or memorialized physically, electronically, photographically, or in writing. 2. Inventions. 2.1 Disclosure. Employee shall disclose promptly to HMI and/or CDI, each Invention, whether or not reduced to practice, which is conceived or learned by Employee (either alone or jointly with others) during the tern of Employee's employment. Further, Employee shall disclose in confidence to HMI and or CDI all patent applications filed by or on behalf of Employee during the term of Employee's employment and for a period of three years thereafter. 2.2 HMI and/or CDI Propeity; Assigrim ent. Employee acknowledges and agrees that all Inventions made, written, discussed, developed, secured, obtained or learned by Employee during the tern of the relationship and the 60-day period immediately following termination of the relationship shall be the sole property of HMI and/or CDI, including without limitation all domestic and foreign patent rights, rights of registration or other protection under the copyright laws, or other rights, pertaining to the Inventions. Employee further agrees that all services, products and Inventions that directly or indirectly result from engagement with HMI and/or CDI, shall be deemed "works for hare" as that tern is defined in Title 17 of the United States Codes and accordingly all rights associated therewith shall vest in HMI and or CDI. Notwithstanding the foregoing, Employee hereby assigns all Employee's right, title and interest in any such services, products and Inventions to HMI and/or CDI, in the event any such services, products and Inventions shall be determined not to constitute "works for hire." 2.3 Exclusion Notice. Employee is not required to assign an idea or invention for which all of the following are applicable: 2- a) No equipment, supplies, facility, or trade secret information of HMI and or CDI were used and the invention or idea was developed entirely on Employee's own time, and b) The invention or idea does not relate to the business of HMI and/or CDI, and C) The invention or idea does not relate to HMI and/or CDI's actual or demonstrably anticipated research or development, and d) The invention or idea does not result from any work performed by Employee for HMI and/or CDI Employee has set forth on Exhibit "A" hereto a complete list of all inventions, if any, patented or unpatented, copyrighted or not copyrighted, including numbers of all patents and patent applications, and applications for copyright protection and registration, and a brief description of all unpatented inventions, which Employee has made prior to Employee's employment and which are to be excluded from the scope of this Agreement. Any patentable improvements made on the listed inventions after the commencement of Employee's employment shall be within the scope of this Agreement. In the event Employee does not list any such Inventions on Exhibit A or fails to attach an Exhibit A, there shall conclusively be deemed to be no inventions to be excluded from the scope of this Agreement. As used in this Section 2.3, "invention" shall mean: 2.4 Time of Inventi= Presumption. For the purpose of this Agreement, an Invention is deemed to have been made during the term of Employee's employment if the Invention was conceived or first actually reduced to practice during the term of such employment. Employee agrees that any disclosures of an invention or any patent application made within one year after termination of Employee's employment shall be presumed to relate to an Invention which was made during the term of Employee's employment unless Employee provides compelling evidence to the contrary. 2.5 Patents and Copyrights• Attorney-in-Fact Employee hereby irrevocably appoints HMI and/or CDI, and its duly authorized officers, and agents, as Employee's agent and attomey-in-fact to act for Employee in filing all patent applications, applications for copyright protection and registration amendments, renewals, and all other appropriate documents in any way related to the Inventions. In addition, Employee agrees to assist HMI and/ or CDI in any way HMI and/or CDI deems necessary or appropriate (at HMI/CDI expense) from time to time to apply for, obtain and enforce patents on , and to apply for, obtain and enforce copyright protection and registration of, the Inventions in any and all countries. TO that end, Employee shall (at HMI/CDI request) without limitation, testify in any suit or other proceeding involving any of the Inventions, execute all documents which HMI and/or CDI reasonably determines to be necessary or convenient for use in applying for and obtaining patents or copyright protection and registration thereon and enforcing same, and execute all necessary assignments thereof to HMI and/or 3- CD] or parties designated by it. Employee's obligation and registration for ithe in obtaining and enforcing patents or copyright Protection inventions shall continue beyond the termination of Employee's employment. During Employee's employment, HMI and/or CDI shall not be required to provide Employee any additional compensation for services provided for in this section. IM and/or CDI obligation to compensate Employee following termination of Employee's employment for Employee's compliance with this section shall be limited to a reasonable rate per hour (not to exceed the equivalent of Employee's hourly rate, computed on the basis of Employee's base salary as of the date of termination) for time actually spent by Employee on such assistance at HMI and/or CDI written request. 3. Use of HMI and/or CDI Information. 3.1 Acknowledement of proprietary Interest in Information. Employee acknowledges or and agrees that any and all Information, whether developed b Employee alone in conjunction with others, or by other IIMUCDI employees, of °HMUCDI acquired by [Company], is the sole and exclusive property Employee hereby disclaims any proprietary interest in any such Information. 3.2 Confidentiality obligation. Employee acknowledges and agrees that HMI/CDI is entitled to prevent the disclosure of Information. Accordingly, in consideration of FNWCDI's agreement to employ Employee and pay Employee compensation for services rendered, Employee agrees at all times during employment with HMI/CDI and thereafter to hold in strictest confidence, and not tt to disclose or persons allow to be disclosed to any person, firm, or corporation, engaged by HNWCDI to further the business of EMWCDL and in any case, not to disclose, use, copy, publish, summarize, or remove from the premises of HMI and/or CDI any Information, including information developed by Employee except (a) as necessary to carry out my assigned. responsibilities as an HMI/ ?lI employee, and (b) after termination of employment, only as sp y authorized in writing by an officer of Ericsson. 3.3 Return of Materials at Termination In the event of the termination for any reason, of Employee's employment, Employee will promptly deliver to HNII/CDI all documents, data, and other information pertaining to inventions and Information; and Employee shall not take any document, or other information, or any reproduction or excerpt thereof, containing or pertaining to any Information or Inventions. -4- 4. Confidential Information of Others. Employee acknowledges the existence of the Economic Espionage Act, 18 U.S.C. § 1831 et seq. ("EEX ), which prohibits Employee from misappropriating trade secrets of others for the economic benefit of HMI and/or CDI. Employee agrees, as a condition of employment with [Company], to comply with the provisions of the EEA. If Employee possesses any confidential, trade secret or proprietary information or documents belonging to others, Employee will not use, disclose to HMI/CDI or induce HMI/CDI to use, any such information or documents during employment by HMI/CDI, and will not bring onto HMI/CDI premises any unpublished document or any other property belonging to any former employer or third parties without the written consent of the affected party. Employee represents and warrants that employment by HMI/CDI will not require Employee to violate any obligation to or confidence with any other party, and that Employee has not as of the date of signing this Agreement, provided to any employee or agent of Ericsson any trade secret, confidential or proprietary information of others. 5. Business Opportunities During the terms of this Agreement, if Employee becomes aware of any project, investment, venture, business or other opportunity (any of the preceding, collectively referred to as an "Opportunity') that is similar to, competitive with, related to, or in the same field as Employer, or any project, investment, venture, or business of Employer, then Employee shall so notify Employer immediately in writing of such Opportunity and shall use Employee's good-faith efforts to cause Employer to have the opportunity to explore, invest in, participate in, or otherwise become affiliated with such Opportunity. 6. Non-Filing Employee specifically agrees that Employer's rights granted hereunder shall include the right not to file for copyrights or domestic or foreign patents when such is considered by Employer in its sole discretion appropriate for the business objectives of Employer. 7. Non-Competition. Employee agrees that, during employment with HMI/CDI, Employee will not directly or indirectly compete with HMl/CDI in any way, and will not act as an officer, director, employee, consultant, lender, or agent of any entity which is engaged in any business of the same nature as, or in competition with, the business in which HMI/CDI is now engaged or in which HMUCDI becomes engaged during the term of Employee's employment. Employee further agrees to perform for HMI/CDI such duties as it may designate from time to time, and will devote his or her full time and best efforts to the business of HM /CDI. -5- 8. Non-Solicitation. Employee agrees that during Employee's employment with HMI/CDl and for two (2) years following the termination, for any reason, of employment, Employee shall not, either on Employee's behalf or on behalf of any other person or entity, directly or indirectly (i) hire, solicit or encourage or induce any employees, directors, consultants, contractors or subcontracts to leave the employ of HMIICDI, or (ii) solicit, induce, encourage or entice away or divert any person or entity which is then a customer of HMI/CDl and which was a customer of HMI/CDl during the time of Employee's employment. 9. Employment At-Will. Nothing in this Agreement is intended to alter Employee's status as an at-will employee. Accordingly, notwithstanding any other term of this Agreement, either Employee or HMI/CDI may terminate Employee's employment for any reason, at any time, with or without notice. Similarly, Employee may terminate their employment at any time, for any reason and without notice. The at-will nature of Employee's employment can be changed only by a written agreement signed by an officer of HM VCDI. 10. General Provisions 8.1 Entire Agreement. This Agreement represents the entire agreement between Employee and HMI/CDl with respect to the subject matter hereof, superseding all previous oral or written communications, representations, understandings or agreements relating to this subject. This Agreement may be changed only by a written agreement signed by an officer of HMI/CDI. 8.2 Successors and Assigns. The rights and remedies of HMUCDI under this Agreement shall inure to the benefit of the successors, assigns and transferees of HMUCDI. Employee shall have no right to assign, transfer or otherwise dispose of his right, title and interest in and to any part of this Agreement or to assign the burdens hereof, without the prior written consent of HMUCDI. 8.3 Remedies Upon Breach. Employee acknowledges and agrees that damages will not be an adequate remedy in the event of a breach of any of Employees obligations under this Agreement. Employee therefore agrees that HMUCDI shall be entitled (without limitation of any other rights or remedies otherwise available to it and without the necessity of posting a bond) to obtain an injunction from any court of competent jurisdiction prohibiting the continuance or recurrence of any breach of this Agreement. The failure of I-DVWCDI to promptly institute legal action upon any breach of this Agreement shall not constitute a waiver of that or any other breach hereof. 8.4 Attorneys' Fees. In the event of any litigation concerning any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or 6- the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorneys' fees, and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. The "prevailing party" means the party determined by the court to have prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgment is rendered. Further, in the event of any default by a party under this Agreement, such defaulting party shall pay all the expenses and attorneys' fees incurred by the ether party in connection with such default, whether or not any litigation is commenced. 8.5 Severability. The illegality, unenforceability or invalidity of any one or more covenants, phrases, clauses, sentences or paragraphs of this Agreement, as determined by a court of competent jurisdiction, shall not affect the remaining portions of this Agreement, or any part thereof' and in case of any such illegality, unenforceability or invalidity, this Agreement shall be construed as if such illegal, unenforceable or invalid covenants, phrases, clauses, sentences or paragraphs, had not been inserted. 8.6 Survivability. The terms and conditions of this Agreement shall survive the termination of Employee's Employment. 8.7 Waiver. The waiver by HMI/CDI of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof. 8.8 Applicable Law. The laws of Pennsylvania shall govern this Agreement. Employee hereby submits to the jurisdiction and venue of the courts of the State of Pennsylvania County of Cumberland for purposes of any such action, and expressly waives any objections to jurisdiction or venue in Pennsylvania. Coup of Cumberlaned. Employee further agrees that service upon Employee in any such action or proceeding may be made by first class mail, certified or registered, to Employee's address as last appearing on the records of HMUCDI. 8.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute a single integrated document. 8.10 Drafting Ambiguities. Each party to this Agreement has reviewed and had the opportunity to revise this Agreement. Each party to this Agreement has had the opportunity to have legal counsel review and revise this Agreement. The rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or of any amendments or exhibits to this Agreement. 7- 8.11 Notices. Any notices provided by one party to the other under the terms of this Agreement shall be hand-delivered or mailed by certified mail to the following, or to such other recipients as that party may designate, in writing: To HM1/CDI To Employee: IN WITNESS WHEREOF, the parties hereto duly executed this Agreement as of the date first above written. Hoffinan Mechanical, Inc. & EMPLOYEE: Creative Distribution, Inc. By' (P ' ed Name) (Printed Name) Title: C7 WR /` Date: a&,? I O?2 Date: _ / yu(y D 8.12 Receipt of Copy. Employee hereby acknowledges that he/she has received a signed copy of this Agreement. 8- Hoffman Mechanical, Inc. Creative Distribution, Inc. 3 Keystone Drive Mechanicsburg, PA 17050 717-790-6062 * 717-790-6068 June 5, 2003 Doug Deimler 409 A First Street Summerdale, PA 17093 Doug: As of yesterday, June 4 2003 your employment is terminated. Be advised that you are prohibited from entering company property, contacting company customers or vendors. Please sign below acknowledging receipt of this memo: Doug Deimler Date M e Jacobs Date Gr hen Strouphar Date VERIFICATION I, Emily Hoffman, of Hoffman Mechanical, Inc. and Creative Distribution, Inc., acknowledge that: 1. I am the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc., and that I am authorized to sign this Verification on behalf of both Companies; 2. The facts set forth in the foregoing document are true and correct to the best of my knowledge, information, and belief; and, 3. I am aware that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: Hoffman Mech,a ical, Inc. By: Emily j? man, P •esident Creative Distribution, Inc. By. Emil offman, resident CERTIFICATE OF SERVICE: I hereby certify that on the 27" day of July 2004, I served a true and correct copy of the foregoing Complaint upon the following by First Class Mail, postage pre-paid, addressed as follows: Douglas L. Deimler 409 A First Street Summerdale, PA 17093 Dated: July 27, 2004 Herbert P. Henderson, II, Esquire Attorney for Plaintiff 36 East King Street Lancaster, PA 17602 (717) 295-9159 HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. Plaintiff VS. DOUGLAS L. DEIMLER, Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2004-2494 P DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT NOW COMES the Defendant, Douglas L. Deimler ("Defendant"), by and through his attorney, to file Preliminary Objections to Plaintiffs' Complaint in the above matter, as follows: 1. LACK OF SPECIFICITY BEGAR]JING JOINDER 1. Two separate entities have been joined in this action as Plaintiffs. 2. Throughout Plaintiffs' Complaint the entities are treated as one and the same entity by such conventions as describing each of the six separate counts pleaded in the Complaint as "Plaintiff vs. Deimler; and by routinely referring to Plaintiffs as "Plaintiff" 3. In addition, Plaintiffs' apparent principal, Emily Hoffman, is frequently named as the plaintiff in lieu of either business entity. For example, in Paragraph 27 of the Complaint, Plaintiffs allege that "Defendant improperly accused Plaintiffs principal of wrongdoing as a 'preemptive strike' against Plaintiff in an attempt to thwart her from commencing litigation against him ... " (Emphasis added). 4. As a consequence, Defendant doesn't know if he's being sued by either or both of the entities that comprise the captioned "Plaintiffs;" or whether he is being sued by the Plaintiffs' apparent principal - Emily Hoffman, in which case Defendant would plead a "sham corporpation(s)" defense. 5. Plaintiffs have not pleaded or explained with sufficient specificity the interrelationship - if any - between these two entities, such as which entity actually employed Defendant; how and/or whether both entities have die, same causes of action or different causes of action against Defendant; how each entity's cause of action is unique, different or separate from that of the other entity. 6. For example, Plaintiffs have failed or refused to plead even the most basic justifications for joinder as are set forth at Rule 229(a) of the Pa. Rules of Civil Procedure, such as whether Plaintiffs are claiming joint, several and/or separate liability and/or relief In addition, there are several exhibits to Plaintiffs' complaint to which one or the other, and sometimes both of the Plaintiffs are parties. 7. Without greater specificity in Plaintiffs' description and pleading as to how and/or why these entities have been joined, and the consequence to Defendant of such joinder, Defendant isn't able to determine which entity is suing him for what; and he cannot determine or adequately plead such other objections and/or affirmative defenses as may be available to him such as misjoinder, sham corporations and piercing the corporate veil; lack of capacity of either or both entities to sue this Defendant, etc. 2 8. Defendant intends to file counterclaims in this matter, and will be unable to adequately designate the appropriate party defendant from among the various persons and/or entities of which these "Plaintiffs" may be comprised. WHEREFORE, Defendant requests that Plaintiff(s) be directed to plead the nature, reason and/or consequence of their joinder as plaintiffs with such specificity as will allow Defendant to adequately respond and defend against Plaintiffs' claims. II. DEMURRER A. COUNT IV - BREACH OF FIDUCIARY DUTY 9. In Count IV of their complaint, Plaintiffs ostensibly plead a cause of action for "Breach of Fiduciary Duty." 10. Plaintiffs have not pleaded a breach of fiduciary claim upon which relief can be granted. 11. The allegations contained in Plaintiffs' complaint are legally insufficient to state a cognizable cause action for breach of fiduciary duty against Defendant. 12. Plaintiff(s) has/have not pleaded sufficient facts to establish that Defendant owed Plaintiff(s) a fiduciary duty - the first and primary element of this purported cause of action. 13. As an employee of Plaintiff(s), Defendant owed no fiduciary duty to Plaintiff(s). On the contrary, it was the Plaintiff(s) that owed a fiduciary duty to Defendant arising out of the employment relationship. 3 WHEREFORE, Defendant requests that the Court dismiss this action, with prejudice. B. COUNT V - UNFAIR COMPIETITION 14. At Count V of their Complaint, Plaintiff; allege an ostensible claim against Defendant of "Unfair Competition." 15. By the bare statement that "the foregoing conduct constitutes an unfair method of competition," at Paragraph 62 of its complaint, Plaintiffs have not pleaded a claim of unfair competition upon which relief can be granted. 16. The allegations contained in Plaintiffs' complaint are legally insufficient to state a cognizable cause action against Defendant for unfair competition. WHEREFORE, Defendant requests that the Court dismiss this action, with prejudice. Date: ccCouS: /? o?av Keith E. Kendall, Esq. Attorney for Defendant 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 (717) 541-9539 PA Attorney ID No. 42910 4 CERTIFICATE OF SERVICE I, Keith E. Kendall, Esq., Attorney for the Defendant, Douglas Deitnler, certify that I have this date served a true and correct copy of Defendant's Preliminary Objection upon the Plaintiffs Attorney by depositing a true and correct copy of the same in the U.S. Mail, postage pre-paid, return receipt requested, addressed as follows: Herbert P. Henderson, II, Esq. 36 East King Street Lancaster, PA 17602 Date: Au &4 51'-f 43es? `> ? 2Y a Keith E. Kendall, Esq. Attorney for Defendant N n J eti? r-? -a z ? "` 1 _ C" ?'cl Mfr' C=, ._ "lJ c\ ? J .' r';`. ?? -, 1'n ? ' r?l?l'} t HOFFMAN MECHANICAL., INC. and CREATIVE DISTRIBUTION, INC. Plaintiff Va. DOUGLAS L. DEIMLER, Defendant VS. EMILY HOFFMAN, HOFFMAN MECHANICAL, INC., and CREATIVE DISTRIBUTION, INC., Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2004-2494 P 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 he entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court Administrator Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 a Plaintiff admits that the address of Creative Distribution, Inc. is as pleaded, to the extent the entity is detenriined to be a legitimate corporation. 3. Admitted. 4. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to Plaintiffs use of the term "affiliated," and the allegation is therefore denied, with proof demanded at trial. Admitted that Plaintiffs operated a business that sold and serviced water filters and conditioners. Denied that Defendant sold or serviced soft drink beverage equipment or control systems. Denied that Hoffman Mechanical, Inc. or Creative Distribution, Inc. were legitimate - and not sham corporations, in that their existence, operation and control were so co- mingled as to make each entity a sham corporation, organized and existing for the sole purpose of providing ostensible protection against individual liability of their sole owner and principal, Emily Hoffman. 5. Denied. Defendant specifically denies that Plaintiffs sold, installed and/or serviced soft drink beverage control systems. Admitted that Defendant sold and often installed water filtering systems for Plaintiffs solely as an employee of Plaintiffs. 6. Admitted that Defendant was employed by Plaintiffs. After reasonable investigation, Defendant is without sufficient information to form a belief as to whether that employment was "at all time relevant hereto," and strict proof thereof is demanded at trial. 2 7. Denied. It is specifically denied that before, during or since the termination of his employment with Plaintiffs, Defendant has continued operation of the business he sold to Plaintiffs. It is specifically denied that Defendant conducted any business whatsoever in competition with Plaintiff before, during or since termination of his employment by Plaintiffs. On the contrary, Defendant's only source of income while employed by Plaintiffs was the wages he received from his employment with Plaintiffs. Further, Defendant did not operate or conduct any business at all following his termination from employment with Plaintiffs, let alone a business that competed with Plaintiffs' businesses. Defendant's only income immediately following his termination from employment with Plaintiffs was his receipt of unemployment compensation benefits. Since selling his business to Plaintiff, Defendant has not conducted any business on his own or for or with any other company in competition with Plaintiffs. 8. Denied. Defendant does not recall specifically when he was presented with the documents referenced as "(a)" and "(b)." He is therefore without sufficient knowledge to form a belief as to the truth of the allegation as to when he received the documents. The allegation is denied, with proof demanded at trial. Defendant admits only that the documents referenced as documents (a) and (b) were signed by him on June 27, 2002 and June 26, 2002, respectively. Defendant specifically denies that the document referenced as document "(c)" was presented to him on June 25, 2002. On the contrary, the document referenced as document (c) was not presented to 3 Defendant until a date after June 25, 2002. The document referenced as document (c) was not explained to Defendant at the time of the sale of his business, nor was Defendant advised at the time of his employment that he would be required to execute the document. By way of further response, the terms or applicability of the document to Defendant were never discussed with Defendant; and no additional consideration accompanied Defendant's execution of the document on July 1, 2002. The document (c) was presented to Defendant by Gretchen Strophor with a stack of other papers - all of which Defendant was directed to sign in order to retain his employment by Plaintiffs. 9. Defendant admits only that he agreed to sell his business to Emily Hoffman; that he signed document referenced as Document (a) attached to Plaintiffs' complaint on the date thereon; and that document (a) contains a general outline of the terms of the sale of the business. Whether or not Defendant's signature on the document was "acceptance" of an "offer" by Hoffman and/or Plaintiffs is a question of law to which no response is required. To the extent the allegations are deemed allegations of fact, Defendant denies that his signature constituted an acceptance of the terms set forth in document (a) and proof is demanded at trial. 10. Denied as stated. Defendant admits only that he signed the document referenced as document (b) attached to Plaintiffs' complaint on the date thereon; and that the document (b) contains a general outline of the terms and conditions of his employment by Hoffman and/or Plaintiffs. Whether or not Defendant's signature on 4 the document was "acceptance" of an "offer" by Hoffman and/or Plaintiffs is a question of law to which no response is required. To the extent the allegations are deemed allegations of fact, Defendant denies that his signature constituted an acceptance of the terms set forth in document (a) and proof is demanded at trial. 11. Denied. It is specifically denied that the document referenced as document (c) and attached to Plaintiffs' complaint constituted any part or condition of Hoffman's and/or Plaintiffs' purchase of Defendant's business. On the contrary, the document (c) was never discussed with or explained to Defendant at or before the sale of his business to Hoffman and/or Plaintiffs or the commencement of his employment with Hoffman and/or Plaintiffs. It was not signed by Defendant until after his employment with began, and only then at the risk of termination of his employment, and without additional consideration. Finally, the document is void ab initio in that the purported June 25, 2002 effective date does not coincide with the July 1, 2002 execution date. By way of further response, Defendant admits that the document (c) speaks for itself and states that which Plaintiffs have re-stated in their complaint. 12. Denied as stated. Defendant admits that Exhibit C to Plaintiffs' complaint speaks for itself, and that the document states that which Plaintiffs have re- stated in their complaint. 13. Denied as stated. Defendant admits that Exhibit C to Plaintiffs' complaint speaks for itself, and that the document contains the text re-stated by 5 Plaintiffs in their complaint. Defendant denies that those portions underlined in Plaintiffs' complaint are or were underlined in the text of Exhibit C to the complaint. 14. Denied as stated. Defendant admits only that Exhibit C to Plaintiffs' complaint speaks for itself; and that the document contains the text re-stated by Plaintiffs in their complaint. The allegation that Defendant's signature on Exhibit C constitutes his legal "acknowledgment" of the legality of Exhibit C or the referenced terms is a question of law to which no response is required. To the extent the allegations are deemed allegations of fact, Defendant denies that his signature constituted an acceptance of the terms set forth in document (a) and proof is demanded at trial. 15. Denied. It is specifically denied that Defendant was "the representative responsible for the sales side of Plaintiff's beverage control and filter system business." Defendant admits only that he was employed by Hoffinan and/or Plaintiffs as a salesman. He had no managerial or other similar role in Hoff van's businesses. Defendant admits only that he conducted the sales activities of a salesman for Hoffman and/or Plaintiffs, including those listed. 16. Denied. Defendant specifically denies that he had access to any of the referenced information. The only information to which Defendant had access and/or knowledge were the customer list from his former business that he supplied to Hoffman and Plaintiffs as part of the sale of his business to Hoffman and/or Plaintiffs, and at or near the commencement of his employment.. Defendant did not 6 have access to information pertaining to "trade secrets," and/or "financial and/or budget information." Admitted that Defendant did learn Plaintiffs' standard business procedures and methods of operation in order to fulfill his employment duties. 17. Denied. It is specifically denied that Defendant violated company policy, failed to perform as required, and/or abused company services such as cellular phones and computers for his own personal use, and strict proof is demanded at trial. Defendant denies that he was terminated for the reasons stated, and strict proof is demanded at trial. By way of further response, Defendant performed his duties in a professional and proper manner at all times while employed by Hoffman and/or Plaintiffs. Defendant specifically denies that he abused or in any way mis-used Hoffman's and/or Plaintiffs' cellular phones, and proof is demanded at trial. Defendant carried his own personal cell phone with him at all times in the event it became necessary for him to make a personal call during work. Defendant specifically denies that he used Plaintiffs' computers for personal use. Defendant did not even have access to the computers used in Hoffman's and/or Plaintiffs' business, nor did Hoffman and/or Plaintiffs supply a company computer for Defendant's use at work. Defendant was required to use his own home personal computer to conduct most of his sales duties on Hoffman and/or Plaintiffs' behalf, which use was not reimbursed by Hoffman and/or Plaintiffs. Finally, Defendant alleges that his termination was illegal and without just cause, as hereinafter set forth. 7 18. Admitted that Hoffman and/or Plaintiffs coerced Defendant to sign the fraudulent and unenforceable document represented as Exhibit D of Plaintiffs' complaint; and that Defendant refused to sign the document. Further, the document falsely and fraudulently represents that Defendant's employment was terminated on June 4, 2002 - in order for Hoffman and/or Plaintiffs to create the illusion that Defendant had performed work on his own and for his own benefit on June 4, 2003, when in fact Defendant worked a full day for Hoffman and/or Plaintiffs on June 4, 2003. Defendant did not become aware that he was terminated until he went into Plaintiffs' place of business on June 5, 2002 to obtain his assignment(s) for that day. 19 Denied. Defendant specifically denies that he installed a filter system at Doc Holiday's Restaurant on June 5 2003. Defendant did install a water filter cartridge on June 5, 2003, model CFS420IMF, which cartridge had been provided to Defendant by Hoffman on May 30, 2003 at approximately 11:00am in the stock room of Hoffman's and/or Plaintiffs' place of business. Hoffman gave the filter to Defendant right after meeting with Defendant on May 30th. At that meeting Defendant advised Hoffman that the kitchen manager at Doc Holiday's told Defendant that they where having scaling problems in their dishwasher. Defendant suggested to Hoffman that they could install this cartridge for a test of hardness, then after a few weeks of using the cartridge they could go back into the restaurant and take a hardness test of the water at the dishwasher. Defendant advised Hoffman that after that process, Hoffman could then make a proposal to the management to sell them a POU (point 8 of use) water softener to feed their dishwasher. Hoffman agreed with Defendant; accompanied Defendant to the stock room; and gave the referenced cartridge to Defendant. The filter obtained from Hoffinan was installed by Defendant - during and as part of his employment by Hoffman and/or Plaintiffs in the existing system on the dishwasher at approximately 1:00 PM on Wednesday, June 4, 2002. Defendant installed the filter on behalf of Hoffman and/or Plaintiffs with the expectation that Hoffman and/or Plaintiffs may be able to sell a water softener to Doc Holiday's. Defendant was still employed by Hoffman and/or Plaintiffs on June 4, 2003 and was not advised of his termination until approximately 12:15 pm on June 5 2002, when he went into Plaintiffs' place of business to receive his work assignments for June 5, 2002. 20. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of the allegation that Hoffinan and/or Plaintiffs allegedly obtained notification from Auntie Anne's Pretzels. Defendant was not privy to or made aware of the fact or terms of the alleged communication, and the allegation is therefore denied, with proof demanded at: trial. 21. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding the alleged communications of another employee of Plaintiffs - to which he was not privy - with an un-named representative of an unidentified McDonald's restaurant, and the allegation is therefore denied, with proof demanded at trial. 9 22. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding alleged communications with a Mr. Hassman to which Defendant was not privy, and the allegation is therefore denied, with proof demanded at trial. 23. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding communications with a Mr. Steve Courtney - an alleged communication to which Defendant was not privy and allegedly conducted with a person Defendant does not even know. The allegation is therefore denied, with proof demanded at trial. 24. Denied. Defendant specifically denies that he has ever suggested that any customer of plaintiffs discontinue their services with Plaintiffs, let alone "convince" such customer to terminate their services with Plaintiffs and utilize the services of a fictional company, with strict proof demanded at trial. 25. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding financial losses that could only be ascertained from records to which Defendant is not and has never been privy. The allegation is therefore denied, with strict proof demanded at trial. 26. Denied. Defendant specifically denies that he engaged in the fictional "side business" alleged, or in any other activity that allegedly competed with his own employer's business. On the contrary, at all times during his employment by 10 Hoffman and/or Plaintiffs, Defendant employed his best efforts - within the limitations imposed by Hoffman's business practices - to further only the interests and business of Hoffman and/or Plaintiffs. Any "lack of performance and low sales volume" attributed to Defendant would not have been due to a lack of effort or any misconduct on the part of Defendant, but primarily due to ineffective and destructive business practices of Hoffman and/or Plaintiffs - such as Hoffman's and/or Plaintiffs' inability to keep the filters required by their customers in stock for prompt installation. 27. Denied. Defendant's allegation is vague, absurd and specifically denied. Defendant is unable to ascertain the meaning of the allegation "Defendant improperly accused Plaintiffs principal of wrongdoing as a 'pre-emptive strike,"' but avers that there were no improprieties on his part for Hoffman and/or Plaintiffs to discover. To the extent the alleged "pre-emptive strike" refers to Defendant's report to law enforcement officials that agents of Hoffman and/or Plaintiffs entered Defendant's home without his permission; accessed his personal computer in his home without his permission; extracted personal information from his personal computer and attempted to covertly monitor Defendant's computer-related activities, Defendant admits that he made such report; that the investigation of Plaintiffs' criminal activities is ongoing; and that the Commonwealth of Pennsylvania is in the process of seeking an indictment in the Court of Common Pleas of Cumberland County for Plaintiffs' criminal activities. Otherwise, after reasonable investigation Defendant has 11 insufficient information to form a belief as to the truth of the allegation. The allegation regarding a "pre-emptive strike" is therefore specifically denied with proof demanded at trial. By way of further response, Defendant has not violated any "Confidentiality Agreement," let alone the unenforceable "Agreement" at Exhibit C of Plaintiffs' complaint. Nor has Defendant in any way disparaged Hoffman and/or Plaintiffs. On the contrary, Defendant believes and therefore avers that Hoffman has disparaged Plaintiff in his pursuit of other employment. 28. Denied. Defendant specifically denies the allegations, with proof demanded at trial. Defendant doesn't even work in his former trade; is not "soliciting clients" on behalf of himself or his fictional new employer; and has not violated any alleged "Confidentiality Agreement" with Hoffman and/or Plaintiffs. Defendant specifically denies that he has disparaged or maligned Hoffman and/or Plaintiffs, and strict proof is demanded at trial. 29. Denied. Defendant specifically denies that he engaged in any of the activities falsely alleged in Plaintiffs' complaint. Defendant specifically denies that he has in any way violated any alleged agreement with Hoffman and/or Plaintiffs. Tee Agreement to which Plaintiffs appear to refer is unenforceable, and strict proof otherwise of any of these false allegations is demanded at trial. 30. Denied. Plaintiffs' false and fictional beliefs and averments are specifically denied. Defendant ceased doing business for himself or his former company - Beverage Equipment Specialist ("BES") - on or about June 28, 2002. 12 Defendant has never made or solicited any sales for or on behalf himself or his former company, or ever represented or even mentioned the name of his former company during his employment by Hoffman and/or Plaintiffs. Defendant specifically denies that he operated any side business, or that he conducted any business for his former company beyond the date of June 28, 2002. Defendant specifically denies that he has operated any side business of any kind, let alone a side business that would be in competition with Hoffman and/or Plaintiffs before, during or after his termination. Plaintiffs' false allegations are denied, with strict proof of these false allegations demanded at trial. 31. Denied. It is specifically denied that Defendant was ever involved in any of the misconduct falsely alleged by Plaintiffs. On the contrary, Defendant was forced to file for bankruptcy following the illegal termination of his employment by Hoffman and/or Plaintiffs. The bankruptcy did not relieve Defendant of all debt from his former company, which debts still remain in effect and which debts are being paid off by Defendant in burdensome monthly installments. The allegation that Defendant did not intend to work for Plaintiffs for a lengthy period of time is false and denied. Defendant sold his business to Plaintiffs in the hope that his new employment would result in a long and lasting employment relationship with Hoffman and/or Plaintiffs. 32. Denied. It is specifically denied that Defendant has any proprietary information of any kind belonging to Hoffman and/or Plaintiffs. Defendant does not 13 possess, control or even need any of Plaintiffs alleged trade secrets, computerized records, documents, client lists, client information, expiration lists, expiration data, proprietary information, or other trade secrets, because he no longer even works in his former occupation. In fact, Defendant never had access to these records while employed by Hoffman and/or Plaintiffs. By way of further response, the only records possessed by Defendant were the water filter accounts transferred to Hoffman and/or Plaintiffs upon his employment with Plaintiffs. Further, Defendant was only occasionally provided such records from Hoffman and/or Plaintiffs as would permit him to make contact with individual customers, such as contact name, phone number and sometimes addresses. These false allegations are specifically denied, with proof demanded at trial. 33. The allegations are ultimate question of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied. Defendant is not engaging - nor has he ever engaged in any breach of any alleged or enforceable confidentiality agreement; he is not violating nor has he ever violated any fiduciary duties allegedly owed to Hoffman and/or Plaintiffs. Defendant does not know nor has he ever known any of Plaintiffs' "trade secrets." Therefore, Defendant was and is incapable of converting, nor has he ever obtained, accessed or converted "trade secrets." Defendant does not practice, nor has he ever practiced unfair competition and intentional interference with any contractual relations between Plaintiff and any other person or entity. 14 COUNT I - BREACH OF OFFER TO PURCHASE 34. Defendant incorporates all responses hereinbefore by reference thereto, as thought set forth in full. 35. Defendant admits only that terms were reached by which Hoffman and/or Plaintiffs purchased Defendant's former business; that Hoffman and/or Plaintiffs employed Defendant as a sales representative as a consequence of the sale of his business to Hoffman and/or Plaintiffs; and that the terms of the sale and the terms and conditions of Defendant's employment are generally described in Exhibits A and B, respectively, of Plaintiffs' complaint. 36. Defendant admits only that an agreement was reached between Defendant and Plaintiffs for the sale of Defendant's business to Plaintiffs, pursuant to the terms generally described in Exhibit A of Plaintiffs' complaint; and that as a consequence of such sale Defendant became employed by Hoffinan and/or Plaintiffs as a sales representative pursuant to the terms generally described in Exhibit B of Plaintiffs' complaint. Defendant specifically denies that any alleged "confidentiality agreement" or the agreement set forth at Exhibit C of Plaintiffs' complaint formed any part of the sale of Defendant's business to Hoffman and/or Plaintiffs or to Defendant's employment by Hoffman and/or Plaintiffs and proof thereof is demanded at trial. 37. Denied. The allegation is a question of law to which a response is not required. To the extent deemed to be allegations of fact, the allegations are denied for 15 the reasons repeated ad nauseum hereinbefore. It is specifically denied that Defendant did not perform his obligations under the terms of sale of his former business to Plaintiffs. Defendant did not continue to operate a fictional separate business; Defendant transferred the entire inventory in his possession to Hoffman's businesses. On June 12, 2002 Defendant discussed with Hoffman that the estimate of existing inventory provided to her would change daily until the business of BES closed upon completion of the transfer. During the 2 weeks between the estimation of Defendant's inventory and the transfer of Defendant's inventory to Plaintiffs, the amount of inventory necessarily decreased because Defendant continued to service customers without replenishing or needing to replenish his inventory. As of the close of his former business on June 28, 2002, an inventory of approximately $4,955.35 remained. This inventory amount was discussed with Hoffman on or about July 2, 2002. Hoffman specifically advised Defendant "I am not going to set here and count every piece of inventory. We agreed upon what inventory was received as completion of the transfer of business and all of BES inventory." Further, Defendant transferred to Hoffman and/or Plaintiffs more than the agreed amount of inventory, including items of shipping and displays, shipping boxes, a red wire display rack, posters and frames, a parts box in which to keep o-rings and other parts, shipping tape dispensers and over 200 equipment labels. It is specifically denied that Defendant breached any alleged or enforceable "Confidentiality/Non-compete Agreement" with Hoffman and/or Plaintiffs, and strict proof is demanded at trial. 16 38. Denied as stated. It is admitted only that Hoffman followed through with her offer to purchase Defendant's business and to employ Defendant, generally as per the terms of Exhibits A and B of Plaintiffs Complaint, respectively. It is denied that Exhibits A and B represent the entire "Agreements" between the parties; and it is denied that Plaintiffs performed fully as required under the complete agreement between the parties, as verbally modified by the parties. Admitted that Hoffman and/or Plaintiffs' agreed to assume one of Defendant's debts - the $8,000 obligation to Cuno, Inc. Because Plaintiffs were making periodic payments on that obligation, Defendant is unaware if that obligation was ever paid in full. The allegation is therefore denied, with proof demanded at trial. 39. Denied. The allegation is a question of law to which a response is not required. To the extent deemed to be allegations of fact, the allegations are denied. Defendant did not continue - nor could he continue to operate his former business while employed by Hoffman and/or Plaintiffs. Defendant transferred all agreed inventory to Hoffman and/or Plaintiffs, as described in Paragraph 37 hereinbefore, and therefore could not have committed a breach of any alleged "contract," let alone a "material breach of an alleged contract." It is specifically denied that Hoffman and/or Plaintiffs had an enforceable "contract" with Defendant in any event, as hereinafter set forth; or that Hoffman and/or Plaintiffs fully performed all of their obligations under any alleged contract. 17 40. Denied. Defendant denies that he breached any alleged contract with Plaintiffs; or that Plaintiffs have been injured by any act or omission of Defendant. To the extent Defendant has been injured, such injury is as a result of mismanagement or other destructive business practices. After reasonable investigation, Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegation that Plaintiffs have been damaged in any amount, let alone in the amount of $11,500.00. The allegations are denied with strict proof demanded at trial. 41. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to what Plaintiffs would have done under any given circumstances, and the allegation is therefore denied, with proof demanded at trial. Further, Defendant did not intend nor engage in any activity "independently and outside of the auspices of Plaintiffs." This false and unsupported allegation is denied, with proof demanded at trial. 42. Denied. It is specifically denied that Defendant breached any alleged agreement with Plaintiffs; or that Plaintiffs were damaged in any way by any alleged act or omission of Defendant. Defendant has been falsely accused of the acts of misconduct attributed to him without a shred of evidence provided by Hoffman and/or Plaintiffs to support their false claims. After reasonable investigation, Defendant is without sufficient information to form a belief as to how Hoffman and/or Plaintiffs could erroneously believe that any business loss they have suffered is 18 attributable to Defendant; or that they have been damaged by any alleged act or omission of Defendant, and proof is demanded at trial. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. COUNT II - BREACH OF EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT 43. Defendant incorporates all responses hereinbefore by reference thereto, as thought set forth in full. 44. Denied. It is specifically denied that Exhibit C to the complaint is enforceable or that Defendant has violated any term of such alleged agreement, even if found to be enforceable. On the contrary, Defendant has at all times complied with and performed all expected and agreed acts and/or refrained from performing all prohibited acts of either Exhibit B or C of the complaint. 45. Denied. For the reasons set forth in detail hereinbefore and hereinafter, Defendant denies that he is or was ever bound by any alleged "confidentiality agreement" with Hoffman and/or Plaintiffs Defendant denies that any such agreement is enforceable. Even if enforceable, Defendant denies that he has failed to adhere to any term of the alleged Agreement, and proof of these false allegations is demanded at trial. 19 46. Denied. Defendant did not violate any alleged agreement in the first instance, and therefore cannot continue to violate any such alleged, perceived and/or contrived contractual obligations, and proof thereof is demanded at trial. 47. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to form a belief that Plaintiffs have suffered and/or will continue to suffer financial loss. To the extent they do continue to suffer financial loss, such loss is not attributable to Defendant, but to the irresponsible, destructive and self-induced business practices of Hoffman and/or Plaintiffs, including the illegal termination of Defendant's employment. Defendant specifically denies any knowledge of or responsibility for any alleged "financial loss" that Plaintiffs are attempting to attribute to him. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. COUNT III - MISAPPROPRIATION OF TRADE SECRETS 48. Defendant incorporates all responses hereinbefore by reference thereto, as thought set forth in full. 49. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to what Plaintiffs "maintain," in that Defendant was not privy to, nor did he have access to Plaintiffs' alleged "administrative, financial and budgetary reports as well as client lists and reports 20 including expiration lists and pricing data." By way of further response, Defendant avers that there was no separation of information maintained by these sham corporations, and proof of this false allegation is demanded at trial. 50. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to whether or not Hoffman and/or Plaintiffs possess "this information," and/or how Hoffman and/or Plaintiffs feel about it if they do possess such information. The allegation is therefore denied, with strict proof is demanded at trial. 51. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of whether such information existed; whether it was purchased; or when such alleged information was purchased. Defendant was not privy to this information. The allegation is therefore denied, with proof demanded at trial. 52. Denied. The allegations are ultimate question of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. By way of further response, after reasonable investigation, Defendant is without sufficient information to form a belief as to what alleged reasonable steps and precautions were allegedly taken by Hoffman and/or Plaintiffs to guard their alleged trade secrets, and proof is demanded at trial. By way of further response, the alleged Confidentiality Agreement presented to Defendant is void and unenforceable. 21 53. Denied. Defendant learned no trade secrets from Plaintiffs, nor did Defendant have access to any data base that may have contained such "secrets." On the contrary, Defendant was the person who imparted all knowledge within his possession to Hoffman and/or Plaintiffs - knowledge gained from years of experience with his former company his prior career. 54. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. Defendant did not even obtain, let alone misappropriate any alleged proprietary information and/or trade secrets from Plaintiffs, and proof is demanded at trial. 55. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to form a belief that Plaintiffs have suffered and/or will continue to suffer financial loss. To the extent they have suffered any alleged financial loss after Defendant's termination, such loss is not attributable to Defendant, but to the irresponsible and destructive business practices of Hoffman and/or Plaintiffs, including the illegal termination of Defendant's employment. Defendant specifically denies any knowledge of or responsibility for any alleged "financial loss" that Plaintiffs own actions have caused but which Plaintiffs are maliciously attempting to attribute to him. 22 WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. COUNT IV - BREACH OF FIDUCIARY DUTY 56. Defendant incorporates his responses to the all of the foregoing allegations by reference thereto, as though set forth in full. 57. Denied. Defendant did not have access to - nor was he entrusted with or privy to any of the information alleged, and proof thereof is demanded at trial. 58. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. Defendant did not have access to - not was he "entrusted with" any of the information alleged, and proof thereof is demanded at trial. 59. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. As repeatedly set forth hereinbefore - which specific denials are incorporated herein - Defendant never maintained a "book of business" or any business -- in competition with Hoffman and/or Plaintiffs or otherwise, nor did he breach any alleged fiduciary duty to Hoffman and/or Plaintiffs. On the contrary, Defendant conducted himself at all 23 times in a manner that was in the best interest of his former employers, and strict proof otherwise is demanded. 60. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. As set forth in Paragraph 59 hereinbefore, Defendant did not operate any business whatsoever during his employment by Hoffman and/or Plaintiffs, let alone a business in competition with his own employer, and strict proof is demanded at trial. 61. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. 62. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation, and proof is demanded at trial. Defendant repeats that if Hoffman and/or Plaintiffs suffered "great financial loss," it was not as a result of his faithful and concerted efforts exclusively for and on behalf of his former employer, but as a result of the destructive and/or incompetent business practices of Hoffman and/or Plaintiffs described hereinbefore. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. 24 COUNT V - UNFAIR COMPETITION 63. Defendant incorporates his responses to the all of the foregoing allegations by reference thereto, as though set forth in full. 64. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, as set forth hereinbefore, with proof thereof demanded at trial. Defendant's employer next following his employment by Plaintiffs wasn't even in the same business as Plaintiffs, nor did Defendant. 65. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, as set forth hereinbefore, with proof thereof demanded at trial. 66. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation, and proof is demanded at trial. Defendant repeats that if Hoffman and/or Plaintiffs suffered "great financial loss," it was not as a result of Defendant's faithful and concerted efforts exclusively for and on behalf of his former employer, but as a result of the destructive and/or incompetent business practices of Hoffman and/or Defendants described hereinbefore. WHEREFORE, Defendant requests that thi.s claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. 25 COUNT VI - INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 67. Defendant incorporates herein all of his responses to the all of the foregoing allegations by reference thereto, as though set forth in full. 68. Denied. At the outset of his employment with Hoffman and/or Plaintiffs, Defendant was aware only of the accounts from his former business, which accounts were included in the sale of Defendant's business to Hoffman and/or Plaintiffs. Following the sale of Defendant's business, Defendant serviced those accounts solely in good faith and exclusively on behalf of Hoffman and/or Plaintiffs. Plaintiffs' false allegations that Defendant was in competition with Plaintiffs is a malicious and paranoid attempt to harm Defendant for his perceived role in losses suffered by Hoffman and/or Plaintiffs resulting their wrongful termination of Defendant and from their own incompetence and destructive business practices. 69. Denied. Defendant did not contact clients of Plaintiffs after his termination; Defendant has never disparaged Hoffman and/or Plaintiffs in any way before, during or after his employment by Plaintiffs. This false allegation is denied, with proof demanded at trial. 70. Denied. Defendant did not contact any of Plaintiffs' clients, so he could not have disparaged Hoffman and/or Plaintiffs. As set forth at length hereinbefore, Defendant did not interfere in any way with any contract between Hoffman and/or Plaintiffs and any of their clients. 26 71. Denied. The allegation is an ultimate question of law to which a response is not required. To the extent determined to be an allegation of fact, same is specifically denied. Defendant did not interfere with any contract between Plaintiffs and any of their clients in the fast instance. Therefore, he could not possibly have interfered without privilege or justification. 72. Denied. The allegation is an ultimate question of law to which a response is not required. To the extent determined to be an allegation of fact, same is specifically denied. Defendant denies engaging in any of the conduct falsely and maliciously attributed to him by Hoffman and/or Plaintiffs. 73. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation, and proof is demanded at trial. Defendant repeats that if Hoffman and/or Plaintiffs did suffer "great financial loss," it was not as a result of Defendant's faithful and concerted efforts exclusively for and on behalf of his former employer, but as a result of the destructive and/or incompetent business practices of Hoffman and/or Defendants described hereinbefore, including the wrongful and unjustified termination of Defendant. WHEREFORE, Defendant requests that all of the foregoing meridess claims be dismissed; and that Defendant be awarded the legal fees and costs to which he a party is entitled pursuant to 42 Pa.C.S. §2503(9) for the arbitrary, vexatious and/or bad faith commencement of his action by Hoffman and/or Plaintiffs. 27 NEW MATTER NOW COMES the Defendant, Douglas Deinder, to assert the following New Matter and Affirmative Defenses relative to Plaintiffs' claims, by newly-numbered Paragraphs, as follows: 1. The "Employee Confidential Information and Inventions Agreement" attached to Plaintiffs' complaint is void for lack of consideration. 2. The Plaintiff corporations are sham corporations, organized, operating and existing for the sole purpose of protecting principal Emily Hoffman from liability for her wrongful and/or illegal acts and/or omissions. 3. As sham corporations, Plaintiffs were without legal authority to enter into the alleged agreements referenced in Plaintiffs' complaint, and/or without legal authority to enforce said alleged Agreements. 4. Defendant is entitled to pierce the corporate veil of the sham corporations named as Plaintiffs in this action, in that Plaintiffs and Plaintiffs' principal - Emily Hoffman - have failed to adhere to corporate formalities; substantially intermingled corporate and personal affairs; and used the corporate form to perpetrate a fraud against Defendant. In addition, Hoffman used her control of Plaintiff corporations and their assets to further her own personal interests and her vendetta against Defendant. 28 5. Defendant has a bankruptcy petition pending in United States Bankruptcy Court, and this action is in violation of the automatic stay attached to bankruptcy claims. 6. Plaintiffs' ostensible and alleged claim(s) are or will be discharged in bankruptcy. 7. Any alleged Agreements that Plaintiffs alleged have been violated by Defendant are void and unenforceable for failure of consideration, including the "Employee Confidential Information and Inventions .Agreement" set forth as Exhibit C of Plaintiffs' complaint. 8. Any alleged Agreements between Hoffman and/or Plaintiffs and Defendant are void and unenforceable because Defendant's alleged agreement to the terms of his employment were induced by fraud on the part of Hoffman and/or Plaintiffs. 9. Defendant is entitled to an award of the legal fees and expenses of defending against this malicious cause of action pursuant to 42 Pa.C.S. §2503(9), in that the commencement of this action by Hoffman and/or Plaintiffs was arbitrary, vexatious and in bad faith. 10. This action was commenced by Hoffman as a vengeful effort to harm, demean, denigrate and vex Defendant for Defendant's report to authorities of criminal acts by Hoffman, Plaintiffs and/or their agents in invading the privacy of Defendant's home without permission; tampering with Defendant's home computer; 29 and illegally extracting information from Defendant's home computer without his knowledge or consent. 11. Any damages allegedly experienced by Plaintiffs were as a result of Plaintiffs' own contributory negligence, acts and/or omissions. 12. Some or all of Plaintiffs' claims are invalid as having been filed beyond the applicable statute of limitations. COUNTERCLAIMS COUNT I - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Deimler v. Hoffman 13. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; and the New Matter set forth at Paragraphs 1 through 12 hereinbefore, are incorporated herein as though set fort in full. 14. On May 1, 2003, Emily Hoffman lured Defendant away from his home on the pretext of assigning work to Defendant. 15. After Hoffman was aware that Plaintiff was no longer at home, Hoffman directed her agents or those of Hoffman Mechanical, Inc. and/or Creative Distribution, Inc. to enter Defendant's home without his knowledge or permission, and extract information from Defendant's personal home computer; all as more fully set forth at Exhibit A hereto. 30 16. When Defendant became aware of the invasion of his home by Hoffman's agents, he reported their actions to the District Attorney's Office of Cumberland County. 17. The District Attorney's Office has undertaken an investigation of Defendant's report, and has advised Defendant that it will seek a criminal indictment for the actions of Hoffman and her agents. 18. This civil action was filed against Defendant solely as reprisal for Defendant having reported Hoffman's illegal acts to the authorities. 19. Hoffman's act of causing her agents to invade Plaintiffs home and personal computer without his knowledge or consent was extreme and outrageous conduct intentionally or recklessly designed and intended to cause Defendant severe emotional distress. 20. Hoffman's act of causing this meritless, malicious and retaliatory claim to be filed was extreme and outrageous conduct intentionally or recklessly designed and intended to cause Defendant severe emotional distress 21. As a result of Hoffman s extreme and outrageous acts set forth hereinbefore, Defendant has suffered severe emotional distress. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. 31 COUNT II - INVASION OF PRIVACY Deimler v. Hoffman 22. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; Defendant's New Matter set forth at Paragraphs 1 through 12 hereinbefore; and Paragraphs 13 through 21 of Defendant's first counterclaim are incorporated herein by reference thereto as though set fort in full. 23. The acts of Hoffman in directing her agents to invade Defendant's home without his knowledge or consent; and invade his home personal computer without his knowledge or consent were unreasonable intrusions upon his privacy and seclusion. 24. As a result of Hoffman's extreme and outrageous acts of unreasonably invading upon Defendant's privacy and seclusion, as set forth hereinbefore, Defendant has suffered severe emotional distress. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. 32 COUNT III - WRONGFUL USE OF CIVIL PROCEEDINGS Deimler v. Hoffman and Plaintiffs 25. The allegations set forth in Defendant's responses to the averments of plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 12 hereinbefore; and in Paragraphs 13 through 24 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 26. Following his termination, Defendant applied for unemployment compensation benefits. 27. Hoffman and/or Plaintiffs herein opposed Defendant's claim for such benefits. 28. Hoffman and/or Plaintiffs opposed Defendant's claim for unemployment compensation benefits for the sole purpose of retaliating against Defendant for the imagined and alleged acts that have given rise to the meritless claims set forth in Plaintiffs' complaint. 29. Unemployment compensation benefits were awarded to Defendant despite the opposition to his unemployment claim by Hoffman and/or Plaintiffs. 30. Hoffman and/or Plaintiffs acted in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the adjudication of Defendant's claim for unemployment compensation benefits. 31. The unemployment compensation proceedings terminated in favor of Defendant. 33 32. As a result of the wrongful conduct of Hoffman and Plaintiffs, Defendant has suffered harm to his reputation; incurred legal fees and expenses; and suffered severe emotional distress. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just, and/or as may otherwise be available to Defendant pursuant to 42 Pa.C.S. §8353. COUNT IV - FRAUD Deimler v. Hoffman and Plaintiffs 33. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 12 hereinbefore; and in Paragraphs 13 through 32 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 34. Defendant agreed to sell his business to Hoffman and Plaintiffs and to accept employment from Hoffman and Plaintiffs based upon representations that Defendant would have secure and lucrative employment for the foreseeable future; and that Hoffman and/or Plaintiffs would provide sufficient support to allow Defendant to successfully perform the duties of his employment. 35. The representations of Hoffman and Plaintiffs were material to Defendant's agreement to sell his business. 34 36. The representations by Hoffman were made falsely, in order to allow Hoffman to acquire Defendant's business solely for the purpose of acquiring Defendant's customers, and with the intent to promptly terminate Defendant's employment. 37. Hoffman's representations were made with the intent of misleading Defendant into selling his business to Hoffman and Plaintiffs. 38. Defendant justifiably relied on Hoffman's representations of secure employment and financial gain. 39. The loss of Defendant's business and his subsequent employment were a proximate result of Defendant's reliance on Hoffman's promises. 40. The loss of Defendant's business based on the fraudulent representations of Hoffman has resulted in severe emotional distress to Defendant; the loss of his employment; and the loss of business opportunities. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. 35 COUNT V - PA WAGE PAYMENT AND COLLECTION LAW Deimler v. Hoffman and Plaintiffs 41. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 12 hereinbefore; and in Paragraphs 13 through 40 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 42. Defendant was employed by Plaintiffs from on or about July 1, 2002 until June 5, 2003. 43. At the time of his termination effective June 5, 2003, Plaintiffs owed wages to Defendant wages for 13 days that Defendant worked for Plaintiffs from approximately May t5, 2003 to June 4, 2003. 44. In addition to failing to pay Defendant's wages for his last 2 weeks of work, Plaintiffs have failed or refused to pay to Claimant approximately $2,000.00 in incentive bonuses and a $500.00 auto allowance. 45. Plaintiffs paid Defendant's wages for 3 of his final 13 days of employment, but have failed or refused to pay the balance of 2 weeks of wages due and owing to Defendant, despite repeated requests for payment. 46. The regular payday by which the unpaid wages should have been paid was June 6, 2003. 36 47. Plaintiffs have failed or refused to pay the said wages due by the next regular payday, in violation of Section 5 of the Act of the Pennsylvania Wage Payment and Collection Law ("Act"), 43 Pa.C.S. §260.5(a). 48. Plaintiffs have not paid the wages within 15 days of June 6, 2003, and is therefore also in violation of Section 3(a) of the Act, 43 Pa.C.S. §260.3(a). 49. Plaintiffs also failed or refused to provide notice to its employees of the time and place of payment of wages, in violation of Section 4 of the Act, 43 Pa.C.S. §260.4. WHEREFORE, Defendant requests payment of all wages due and owing to him from Plaintiffs; a 10% penalty pursuant to Section 9.1(c) of the Act, 43 Pa.C.S. §260.9(a)(c); and an award of legal fees and expenses in pursuing a legal remedy to obtain payment of wages due and unpaid. COUNT VI - WRONGFUL TERMINATION Deimler v. Hoffman and Plaintiffs 50. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 12 hereinbefore; and in Paragraphs 13 through 49 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 51. By letter dated June 2, 2004, received by Hoffman on or about June 3, 2004, Defendant's counsel requested that he be permitted to review Defendant's personnel file. 37 52. Hoffman and/or Plaintiffs failed or refused to respond to Defendant's request; and/or failed or refused to permit Defendant to review his personnel file. 53. Defendant's request was made while Defendant was still employed by Hoffman and/or Plaintiffs. 54. Defendant had a right to review his personnel file pursuant to the Personnel File Inspection Act 55. Defendant's failure or refusal to permit Defendant to review his personnel file was in violation of the Personnel File Inspection Act. 56. Defendant was terminated June 5, 2004 because he requested review of his personnel file. 57. Termination of an employee for requesting review of the employee's personnel file, to prevent and/or interfere with the exercise of the employee's right to review of such personnel file violates the public policy of this Commonwealth, by frustrating the rights guaranteed to employees by the Personnel File Inspection Act, 43 Pa.C.S. §1322, et seq. 58. Hoffman's wrongful termination of Defendant has caused Defendant to experience and suffer severe emotional distress. 59. Hoffman's wrongful termination of Defendant has resulted in the loss to Defendant of the wages and benefits that he would and should have received from continued employment, as well as the loss to Defendant of the ability to work in his chosen career. 38 WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. Date: r D Keith E. Kendall, Esq. Attomev for Defendant 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 (717) 541-9539 PA Attorney ID No. 42910 39 VERIFICATION I, Douglas Deimler, the Defendant in this civil action, verify that the statements made in the foregoing Defendant's Answer, New Matter and Counterclaim to Plaintiffs Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. Date: / c,?cr ZL, Zl Do (P mler, Plaintiff NetSrv Communications Information Technology for Business July 7, 2003 On June 12, 20031 examined a Hewlett Packard Pavilion personal computer belonging to Doug Daimler. This examination was done at Mr. Deimlees request for the purpose of detecting and documenting usage activity during a specific period of time on 05-01-03. The Windows XP operating system event log indicates activity of the CD-Buming Service (events 7035 and 7036) numerous times between 2:06 PM and 2:41 PM on the specified date. Figure 1 lists the event log entries; Figure 2 provides a detailed description of event 7035; Figure 3 provides a detailed description of event 7036. A search for files modified during the specified time period shows numerous files used by "Act!", a contact management application program, were modified. The list of modified files is shown in Figure 4. Of particular interest in figure 4 is the file named ACT5demo modified on 05-01-03 at 2:23 PM. ACT5demo is a shortcut created by the operating system to provide access to recently used files. The significance of this file is the fact that the target of the shortcut resides on drive "H:" as shown in figure 5. Figure 6 shows drive "H:" does not exist on Mr. Deimlees computer. This indicates the presence of an external device connected to the computer at 2:23 PM. In summary, it is apparent that Mr. Deimlees computer was in use between 2:06 and 2:41 on 05-01-03 and that the user accessed data files associated with the contact management application "Act!" and, the user copied data to a writable CD and possibly to an external storage device not normally attached to this computer. Respectfully submitted, Bill Kuehnle President, NetSrv Communications 79Rrnjth l lninn Shawt MiAAlwtnw PA 17(.57 717 Ann nRnn FAX 717 Ann nR4R Fie Actlon VIeM Help AT±'`? 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Tex.I ( , PF File 5(1(L'rW311. 03PM PF Poe 51IJ200311:03 PM Cwi5111200311:03 PM1 : Figure 5 Poe Edit Yew F.v ss Took Help 4' J`)5.dl I?. Folders ®'r'. .,•:k Norton AMYrus ?jStrsrcq Mae Fdes Stored on This Computer STSLect Tasks , R _.. _. t V/ Shared Documents L Owner's Documents Hard Disk Driven Other Pla y w Q..A W PAVILION (Q) FF RECOVERY (D:) Deuces with Removable Storage Detail 31h Flpoov (A,) ' CD Drive E. ww S PVD Drive (F,) fS'B 5)r'it5 ?i'? F? tl ? a „ Network Drives Other Figure 6 CERTIFICATE OF SERVICE I, Keith E. Kendall, Esq., Attorney for the Defendant, Douglas Deimler, certify that I have this date served a true and correct copy of Defendant's Answer, New Matter and Counterclaims upon the Plaintiffs Attorney by depositing a true and correct copy of the same in the U.S. Mail, postage pre-paid, return receipt requested, addressed as follows: Herbert P. Henderson, II, Esq. 36 East King Street Lancaster, PA 17602 Date: Keith E. Kendall, Esq. Attorney for Defendant c? ? o c` c7D I?"91 Y ?- ) r i ` r C-5 n 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. VS. 2004-2494 P DOUGLAS L. DEIMLER MOTION TO WITHDRAW AS LEGAL COUNSEL 1. Movants are Herbert P. Henderson, II, Esquire, and Reidenbach, Henderson & Pecht, counsel for the Plaintiffs in the above-captioned action. 2. Movees are Hoffman Mechanical, Inc., and Creative Distribution, Inc., Plaintiffs in the above-captioned action. 3. Movants represent Movees in this proceeding. 4. Movees have indicated that they no longer wish Movants to represent them in the above-captioned action and that they have obtained new legal counsel; however, no legal counsel has yet to enter an appearance. 5. Furthermore, other matters have arisen between the parties which have strained the attorney-client relationship beyond repair and Movants believe, and therefore aver, that good cause to withdraw its representation exists under the Rules of Professional Conduct to allow Movants' prayer for relief. WHEREFORE, Movants respectfully request that this Honorable Court enter an Order granting leave to withdraw as counsel on behalf of Movees. REIDENBACH, HENDERSON & PECHT t v\ BY, Herbert P. Henderson, II I.D. No. 56304 36 East King Street Lancaster, PA 17602 717-295-9159 VERIFICATION I have read the foregoing and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to the unsworn falsification to authorities. REIDENBACH, HENDERSON & PECHT k-,- Dated: December f , 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. VS. 2004-2494 P DOUGLAS L. DEIMLER CERTIFICATE OF SERVICE I, Herbert P. Henderson, Esquire, of Reidenbach, Henderson & Pecht, attorneys for Movees, depose and say that I served a true and correct copy of the Motion to Withdraw as Legal Counsel on the following persons and in the manner indicated below: Service by first class mail, addressed as follows: Hoffman Mechanical, Inc. 625 Hamilton Street Carlisle, PA 17013 Creative Distribution Inc. 625 Hamilton Street Carlisle, PA 17013 Keith E. Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 REIDENBACH, HENDERSON & PECHT By: Herbert P. Henderson, I. D. No. 56304 36 East King Street Lancaster, PA 17602 717-295-9159 Dated: December t a , 2004 r V .{ 1 1 MAY-25-2006 15:57 Reidenbach a Henderson 717 295 1225 P.02 HOFFMAN MECHANICAL, INC. and : IN THE COURT OF COMMON PLEAS CREATIVE DISTRIBUTION, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ; V. DOUGLAS L. DEIMLER, Defeadant. ; V* EMILY HOFFMAN, HOFFMAN , MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. DOCKET NO.: 2004-2494 P CIVIL ACTION - IN LAW Counterclaim Defendants. WITHDRAWAL AND ENTRY OF APPEARANCE FOR PLAINTik'FS/COUNTERCLAIM DEFENDANTS TO THE PROTHONOTARY: Please withdraw the appearance of Herbert P. Henderson, 11, Esquire as counsel for the Plaintiffs/Counterclaim Defendants in the above captioned matter. Respectfully submitted, Dated:- By: Herbert P. Henderson, 11 Attorney I.D. No. 56304 Reidenbach & Henderson 36 East King Street Lancaster, PA 17602 [CONTINUED ON NEXT PAGE] RECEIVED TIME MAY-25. 4:02PM MAY-25-2006 15:57 Reidenbach a Henderson 717 295 1225 P-03 TO THE PROTHONOTARY: Please eater the appearance of Paige Macdonald-Matthes, Esquire as counsel for the Plaintiffs/Counterclaim Defendants in the above captioned matter. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFmw BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Appellant Date: May 25, 2006 RECEIVED TIME MAY-25, 4:02PM MAY-25-2006 15:57 Reidenbach a Henderson * 717 295 1225 P.04 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Plaintiffs/Counterclaim Defendants' Notice of Withdrawal and Entry of Appearance has been served upon all parties of interest by placing the same in the United States Mail, first-class, postage pre- paid, at Harrisburg, Pennsylvania on this 25th day of May, 2006, and addressed as follows: Keith E. Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 Paige Macdonald-Matthes, Esquire RECEIVED TIME MAY-25, 4:02PM TOTAL P.04 i7j 17', v I ",..J LJ ?+y ? HOFFMAN MECHANICAL, INC. and : IN THE COURT OF COMMON PLEAS CREATIVE DISTRIBUTION, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. DOUGLAS L. DEIMLER, Defendant. V. EMILY HOFFMAN, HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. DOCKET NO.: 2004-2494 P CIVIL ACTION - IN LAW Counterclaim Defendants. NOTICE TO PLEAD To: Douglas L. Deimler c/o Keith Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 You are hereby notified to file a written response to the enclosed Preliminary Objections to Defendant's Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, 'tea as,no 1A??...?vv?.???.lnwn*8?fnon Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: May 25, 2006 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorneys for Plaintiffs/Counterclaim Defendants HOFFMAN MECHANICAL, INC. and : IN THE COURT OF COMMON PLEAS CREATIVE DISTRIBUTION, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : DOCKET NO.: 2004-2494 P V. DOUGLAS L. DEIMLER, Defendant. V. : CIVIL ACTION - IN LAW EMILY HOFFMAN, HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. Counterclaim Defendants. PLAINTIFFS'/COUNTERCLAIM DEFENDANTS' PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM AND NOW, come Plaintiffs, Hoffinan Mechanical, Inc. and Creative Distribution, Inc. (hereinafter collectively "Plaintiffs"), and Counterclaim Defendants, Emily Hoffinan, Hoffinan Mechanical, Inc. and Creative Distribution, Inc. (hereinafter collectively "Counterclaim Defendants"), by and through their counsel, Serratelli, Schiff nan, Brown & Calhoon, P.C., and file their Preliminary Objections to Defendant's Counterclaim, and in support thereof aver as follows: PRELIMINARY OBJECTION TO COUNT I OF DEFENDANT'S COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) In Count I of Defendant's Counterclaim, Defendant asserts a claim for Intentional Infliction of Emotional Distress ("IIED") against Emily Hoffman, Individually. 2. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 3. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 4. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 5. Count I of Defendant's Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count I of Defendant's Counterclaim, dismiss Count I of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 2 PRELIMINARY OBJECTION TO COUNT I OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 6. The averments set forth in paragraphs 1 through 5 are incorporated herein by reference as if more fully set forth at length. 7. In Count I of Defendant's Counterclaim, Defendant asserts a claim for IIED against Emily Hoffinan, Individually. 8. For the reasons set forth in paragraphs 1 through 5, Emily Hoffman is not a party to this action. 9. Assuming arguendo, that Emily Hoffman is a properly named party in this action, (which Counterclaim Defendants do not concede), in order for Defendant to prevail on his claim for IIED, Defendant must show that Ms. Hoffman's actions were intentional, outrageous and that medically documented physical symptoms were produced on account of the emotional distress. Wiltz v. Pazzalia, 2004 WL 3422031 (Pa. Com. Pl.) 10. A review of Defendant's counterclaim reveals that it is void of any reference to Defendant's medically documented physical symptoms that were produced on account of the alleged emotional distress. 11. Assuming for purposes of this demurrer that the facts alleged by Defendant are true', Defendant has averred that Emily Hoffman directed her conduct at the real and personal property of Defendant. The appropriation of land or personalty of another does not involve conduct directed toward a third person, nor does it raise to level of outrageous conduct that is required for relief under Restatement (Second) of Torts §46. Wiltz, supra. A point which Plaintiffs/Counterclaim Defendants do not concede. 3 12. Defendant has included in Count I of his counterclaim a claim for punitive damages. 13. Defendant has failed to plead any facts upon which his claim for punitive damages is based. Instead, Defendant has simply made boilerplate allegations that Emily Hoffman's alleged conduct was "outrageous". 14. Pennsylvania law is clear that simply averring "outrageous conduct" or "reckless indifference to the interests of others" amounts to pleading conclusions not facts. Hough v. Meyer, 2002 WL 1764126 (Pa. Com. Pl.). 15. The facts before the court in Count I of Defendant's counterclaim present no basis for relief in favor of Defendant. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count I of Defendant's Counterclaim, dismiss Count I of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT II OF DEFENDANT'S COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 16. The averments set forth in paragraphs 1 through 15 are incorporated herein as if more fully set forth at length. 17. In Count II of Defendant's Counterclaim, Defendant asserts a claim for Invasion of Privacy against Emily Hoffman, Individually. 4 18. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 19. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 20. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 21. Count II of Defendant's Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count II of Defendant's Counterclaim, dismiss Count II of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT II OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa R. Civ. P 1028(a)(4) 22. The averments set forth in paragraphs 1 through 21 are incorporated herein as if more fully set forth at length. 23. In Count II of Defendant's Counterclaim, Defendant asserts a claim for "invasion of privacy" against Emily Hoffman, Individually. 24. For the reasons set forth in paragraphs 17 through 21, Emily Hoffman, Individually is not a party to this action. 25. Assuming arguendo, that Emily Hoffman is a properly named party in this action (which Counterclaim Defendants do not concede), in order to prevail on his claim for invasion of privacy Defendant must plead the required elements. Specifically, Defendant must plead publicity given to private facts, which would be highly offensive to a reasonable person, and which are not of legitimate concern to the public. 26. A review of Count II of Defendant's Counterclaim reveals that it is void of any reference to the publicity of private facts. 27. A review of Count II of Defendant's Counterclaim reveals that it is void of any reference to the publicity of public facts which are highly offensive to a reasonable person. 28. A review of Count II of Defendant's Counterclaim reveals that it is void of any reference to the publicity of facts which are not of legitimate concern to the public. 29. Absent the required elements necessary to sustain a cause of action for invasion of privacy, Count II of Defendant's Counterclaim is legally insufficient and must be dismissed. 30. Defendant has included in Count II of his counterclaim a claim for punitive damages. 31. Defendant has failed to plead any facts upon which his claim for punitive damages is based. Instead, Defendant has simply made boilerplate allegations that Emily Hoffinan's alleged conduct was "outrageous". 32. Pennsylvania law is clear that simply averring "outrageous conduct" or "reckless indifference to the interests of others" amounts to pleading conclusions not facts. Hough v. Meyer, 2002 WL 1764126 (Pa. Com. Pl.). 33. The facts before the court in Count II of Defendant's counterclaim present no basis for relief in favor of Defendant. 6 WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count II of Defendant's Counterclaim, dismiss Count II of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT III OF DEFENDANT'S COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 34. The averments set forth in paragraphs 1 through 33 are incorporated herein as if more fully set forth at length. 35. In Count III of Defendant's Counterclaim, Defendant asserts a claim for Wrongful Use of Civil Proceedings against Emily Hoffman, Individually. 36. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 37. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 38. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 39. Count III of Defendant's Counterclaim fails to conform to rule of court. 7 WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count III of Defendant's Counterclaim, dismiss Count III of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT III OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P 1028(a)(4) 40. The averments set forth in paragraphs 1 through 39 are incorporated herein as if more fully set forth at length. 41. In Count III of Defendant's Counterclaim, Defendant asserts a claim for Wrongful Use of Civil Proceedings. 42. A review of Count III of Defendant's Counterclaim reveals that it is based solely on the fact that Plaintiffs challenged Defendant's claim for unemployment compensation benefits. 43. An unemployment compensation case is not a lawsuit between employer and employee, but is a claim by unemployed person against the unemployment compensation fund. Ault v. Unemployment Bd. Of Review, 188 Pa. Super. 260, 146 a.2d 729, reversed on other grounds, 398 Pa. 250, 157 A.2d 375. 44. Pursuant to the Pennsylvania Unemployment Compensation Law, Plaintiffs had the right to challenge the determination that Defendant was eligible for unemployment compensation benefits due to Defendant's willful misconduct and due to the fact that Defendant materially breached the terms of his employment contract with Plaintiff. See 43 P.S. §821(e). See also, Morrison v. Dent. of Corrections, 659 A.2d 620 (Pa. Cmwlth. 1995). 8 45. In light of Defendant's willful misconduct and Defendant's material breach of the terms of his employment contract with Plaintiff, there was a legitimate legal dispute. 46. Pennsylvania law is clear that there is no action for wrongful use of civil proceeding when the proceeding is used for the purpose for which it is intended. 47. Defendant has included in Count III of his counterclaim a claim for punitive damages. 48. Defendant has failed to plead M facts upon which his claim for punitive damages is based. 49. The facts before the court in Count III of Defendant's counterclaim present no basis for relief in favor of Defendant. 50. Count III of Defendant's counterclaim is legally insufficient and should be dismissed with prejudice. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count III of Defendant's Counterclaim, dismiss Count III of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT IV OF DEFENDANT'S COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 51. The averments set forth in paragraphs 1 through 50 are incorporated herein as if more fully set forth at length. 9 52. In Count IV of Defendant's Counterclaim, Defendant asserts a claim for fraud against Emily Hoffinan, Individually. 53. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 54. Emily Hoffinan is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 55. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 56. Count IV of Defendant's Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count IV of Defendant's Counterclaim, dismiss Count IV of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT IV OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa R Civ P 1028(a)(4) 57. The averments set forth in paragraphs 1 through 56 are incorporated herein as if more fully set forth at length. 10 58. In Count IV of Defendant's Counterclaim, Defendant asserts a claim for fraud. 59. In order to maintain an action for fraud, Defendant must allege the following elements: (a) a representation; (b) which is material to the transaction at hand; (c) made falsely, with the knowledge of its falsity or recklessness as to whether it is true or false; (d) with the intent of misleading another into relying on it; (e) justifiable reliance on the misrepresentation; and (f) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 729 A.2d 555 (Pa. 1999). 60. A review of Defendant's employment contract and non-compete agreement which are attached to Plaintiffs' Amended Complaint as Exhibit "A" and Exhibit "B" reveals that there was absolutely no representation made by Plaintiffs that "Defendant would have secure and lucrative employment for the foreseeable future; and that Hoffman and/or plaintiffs would provide sufficient support to allow Defendant to successfully perform the duties of his employment," as averred by Defendant. 61. A review of the non-compete agreement attached to Plaintiffs' Amended Complaint as Exhibit "B" reveals that it includes an integration clause which states in relevant part "This Agreement represents the entire agreement between Employee and HMI/CDI with respect to the subject matter hereof, superseding all previous oral or written communications, representations, undertakings or agreements relating to this subject." 62. By executing his employment contract and non-compete agreement, Defendant expressly stated that he did not rely on upon any representations that were not set forth in the written contracts of employment. Such a disclaimer negates Defendant's allegation of reliance in Count IV of Defendant's counterclaim. 11 63. The parol evidence rule bars the admission of any alleged representations made by the Counterclaim Defendants to vary, modify, or supersede the written contracts of employment. 64. Count IV of Defendant's Counterclaim fails to state a cause of action for fraud against the Counterclaim Defendants upon which relief may be granted. 65. Defendant has included in Count IV of his counterclaim a claim for punitive damages. 66. Defendant has failed to plead M facts upon which his claim for punitive damages is based. 67. The facts before the court in Count IV of Defendant's counterclaim present no basis for relief in favor of Defendant. 68. Count IV of Defendant's counterclaim is legally insufficient and should be dismissed with prejudice. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count IV of Defendant's Counterclaim, dismiss Count IV of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 12 PRELIMINARY OBJECTION TO COUNT V OF DEFENDANT'S COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 69. The averments set forth in paragraphs 1 through 68 are incorporated herein as if more fully set forth at length. 70. In Count V of Defendant's Counterclaim, Defendant asserts a claim for violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") against Emily Hoffinan, Individually. 71. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 72. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 73. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 74. Count V of Defendant's Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection in the nature of to Count V of Defendant's Counterclaim, dismiss Count V of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 13 PRELIMINARY OBJECTION TO COUNT V OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 75. The averments set forth in paragraphs 1 through 74 are incorporated herein as if more fully set forth at length. 76. In Count V of Defendant's Counterclaim, Defendant asserts a claim for violation of the WPCL against the Plaintiff Corporations and against Emily Hoffman, Individually. 77. Assuming arguendo, that Emily Hoffman is a properly named party to this action (which, for the reasons set forth in paragraphs 53-57 Counterclaim, Defendants do not concede), Defendant has failed to properly plead a cause of action against Emily Hoffman, Individually under the WPCL. 78. An individual is not an employer and is not personally liable under the WPCL simply because they are a shareholder, officer, or director of a corporation. 79. Rather, in order for such individual to deemed an employer and be subject to personally liability under the WPCL, there must be some indication that such individual exercised an active role in the policy-making and decision-making for the corporation. Mahonev v. McClure, 390 Pa. Super. 338, 568 A.2d 682 (1990). 80. Defendant's Counterclaim is wholly devoid of any allegations regarding what, if any, role the individual counterclaim defendant had in the policy-making and decision-making for the Plaintiff Corporations. 81. Count V of Defendant's Counterclaim fails to state a cause of action for violation of the WPCL against the individual counterclaim defendant upon which relief may be granted. 14 WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count V of Defendant's Counterclaim, dismiss Count V of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT VI OF DEFENDANT'S COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 82. The averments set forth in paragraphs 1 through 81 are incorporated herein as if more fully set forth at length. 83. In Count VI of Defendant's Counterclaim, Defendant asserts a claim for wrongful termination against Emily Hoffman, Individually. 84. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 85. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 86. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 87. Count VI of Defendant's Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count VI of Defendant's Counterclaim, 15 dismiss Count VI of the Defendant's Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT VI OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 88. The averments set forth in paragraphs 1 through 87 are incorporated herein as if more fully set forth at length. 89. In Count VI of Defendant's Counterclaim, Defendant asserts a claim for wrongful termination. 90. Defendant contends that his termination on June 5, 2004 was the alleged result of his request to review his personnel file. 91. Defendant was not denied the opportunity to review his employment file. 92. A review of the notice of termination issued by Plaintiffs to Defendant belies Defendant's contention that his termination resulted from his request to review his personnel file. 93. Defendant has failed to plead any facts which would support his allegation that his termination was the result of his request to view his personnel file. 94. Defendant has failed to offer any medical evidence that would support his claim that his termination of employment caused him to "experience and suffer severe emotional distress". 95. Defendant has failed to offer any evidence which would support his contention that his termination of employment resulted in "the loss to Defendant of the ability to work in his chosen career." 96. Defendant has requested punitive damages in his claim for wrongful termination. 16 97. Count VI is wholly devoid of any allegation which would support a claim for punitive damages. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count VI of Defendant's Counterclaim, dismiss Count VI of the Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Appellant Date: May 25, 2006 17 VERIFICATION I verify that the statements made in the foregoing document are true and correct- I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. r Date: J? E-?' milt' Hof , Pre i en Hoffman anical, Tnc. 20 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date: V cto Emily Hof , Preside t Creative tribution, Inc. VERIFICATION I verify that the statements made in the foregoing document are true and conect. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S Section 4904, relating to unswom falsification to authorities. Date. Emily I an,-In divi ly 22 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Counterclaim Defendants' Preliminary Objections to Defendant's Counterclaim has been served upon all parties of interest by placing the same in the United States Mail, first-class, postage pre-paid, at Harrisburg, Pennsylvania on this 25th day of May, 2006, and addressed as follows: Keith E. Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 ?a?.aQ. ? Paig ae Mcdonald-Mat Jl thes, Esquire 18 :.. -171 ' _ ; k /' '% HOFFMAN MECHANICAL, INC. and IN THE COURT OF COMMON PLEAS CREATIVE DISTRIBUTION, INC., CUMBERLA COUNTY, PENN SYLV A Plaintiffs DOCKET NO.: 2004-2494 P V. CIVIL ACTI N - IN LAW DOUGLAS L. DEIMLER, Defendant. V. EMILY HOFFMAN, HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. Counterclaim Defendants. WITHDRAWAL TO THE PROTHONOTARY: Please substitute the attached Notice of Withdraw bearing the original signature of Herbert P. Henderson, II, Esquire for the Notice of ithdrawal previously filed with the Court on or about May 26, 2006, in regard to the ab ve captioned matter. Dated: May 30, 2006 Respectfully Paige Nlacdo ald-Matthes, Esquire Attorney ID o. 66266 SERRATEL I, SCHIFFMAN, BROWN & ALHOON, P.C. 2080 Lingles own Road, Suite 201 Harrisburg, P 17110 (717) 540-91 0 Attorneys for laintiffs CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Praecipe Signature has been served upon all parties of interest by placing States Mail, first-class, postage pre-paid, at Harrisburg, May, 2006, and addressed as follows: Keith E. Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 Paige Substitute Original same in the United on this 30th day of Esquire #( 1 L J C7 V ?+ T. I _j N -b HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. Plaintiff VS. DOUGLAS L. DEIMLER, Defendant Vs. HOFFMAN MECHANICAL, INC.; CREATIVE DISTRIBUTION, INC.; and EMILY HOFFMAN Defendants IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA No. 2004-2494 P jury Trial Demanded DEFENDANT'S ANSWER TO DEFENDANT'S AMENDED COMPLAINT, WITH AMENDED NEW MATTER AND AMENDED COUNTERCLAIMS NOW COMES the Defendant, Douglas L. Deimler ("Defendant"), by and through his attorney to respond to the allegations of Plaintiffs Complaint by evenly- numbered paragraphs, as follows: 1. Denied. Hoffman Mechanical, Inc. is a sham corporation, organized and existing to conceal and protect principal owner Emily Hoffman from accountability for her individually illegal and wrongful acts, as hereinafter set forth. Otherwise, Plaintiff admits that the address of Hoffman Mechanical is as pleaded, to the extent the entity is determined to be a legitimate corporation. 2. Denied. Creative Distribution, Inc. is a sham corporation, organized and existing to conceal and protect principal owner Emily Hoffman from accountability 6 for her individually illegal and wrongful acts, as hereinafter set forth. Otherwise, Plaintiff admits that the address of Creative Distribution, Inc. is as pleaded, to the extent the entity is determined to be a legitimate corporation. 3. Admitted. 4. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to Plaintiffs use of the term "affiliated," and the allegation is therefore denied, with proof demanded at trial. Admitted that Plaintiffs operated a business that sold and serviced water filters and conditioners. Denied that Defendant sold or serviced soft drink beverage equipment or control systems. Denied that Hoffman Mechanical, Inc. or Creative Distribution, Inc. were legitimate - and not sham corporations, in that their existence, operation and control were so co- mingled as to make each entity a sham corporation, organized and existing for the sole purpose of providing ostensible protection against individual liability of their sole owner and principal, Emily Hoffman. 5. Denied. Defendant specifically denies that Plaintiffs sold, installed and/or serviced soft drink beverage control systems. Admitted that Defendant sold and often installed water filtering systems for Plaintiffs solely as an employee of Plaintiffs. 6. Admitted that Defendant was employed by Plaintiffs. After reasonable investigation, Defendant is without sufficient information to form a belief as to whether that employment was "at all time relevant hereto," and strict proof thereof is demanded at trial. 2 7. Denied. It is specifically denied that before, during or since the termination of his employment with Plaintiffs, Defendant has continued operation of the business he sold to Plaintiffs. It is specifically denied that Defendant conducted any business whatsoever in competition with Plaintiff before, during or since termination of his employment by Plaintiffs. On the contrary, Defendant's only source of income while employed by Plaintiffs was the wages he received from his employment with Plaintiffs. Further, Defendant did not operate or conduct any business at all following his termination from employment with Plaintiffs, let alone a business that competed with Plaintiffs' businesses. Defendant's only income immediately following his termination from employment with Plaintiffs was his receipt of unemployment compensation benefits. Since selling his business to Plaintiff, Defendant has not conducted any business on his own or for or with any other company in competition with Plaintiffs. 8. Denied. Defendant does not recall specifically when he was presented with the documents referenced as "(a)" and "(b)." He is therefore without sufficient knowledge to form a belief as to the truth of the allegation as to when he received the documents. The allegation is denied, with proof demanded at trial. Defendant admits only that the documents referenced as documents (a) and (b) were signed by him on June 27, 2002 and June 26, 2002, respectively. Defendant specifically denies that the document referenced as document "(c)" was presented to him on June 25, 2002. On the contrary, the document referenced as document (c) was not presented to 3 Defendant until a date after June 25, 2002. The document referenced as document (c) was not explained to Defendant at the time of the sale of his business, nor was Defendant advised at the time of his employment that he would be required to execute the document. By way of further response, the terms or applicability of the document to Defendant were never discussed with Defendant; and no additional consideration accompanied Defendant's execution of the document on July 1, 2002. The document (c) was presented to Defendant by Gretchen Strophor with a stack of other papers - all of which Defendant was directed to sign in order to retain his employment by Plaintiffs. 9. Defendant admits only that he agreed to sell his business to Emily Hoffman; that he signed document referenced as Document (a) attached to Plaintiffs' complaint on the date thereon; and that document (a) contains a general outline of the terms of the sale of the business. Whether or not Defendant's signature on the document was "acceptance" of an "offer" by Hoffman and/or Plaintiffs is a question of law to which no response is required. To the extent the allegations are deemed allegations of fact, Defendant denies that his signature constituted an acceptance of the terms set forth in document (a) and proof is demanded at trial. 10. Denied as stated. Defendant admits only that he signed the document referenced as document (b) attached to Plaintiffs' complaint on the date thereon; and that the document (b) contains a general outline of the terms and conditions of his employment by Hoffman and/or Plaintiffs. Whether or not Defendant's signature on 4 the document was "acceptance" of an "offer" by Hoffman and/or Plaintiffs is a question of law to which no response is required. To the extent the allegations are deemed allegations of fact, Defendant denies that his signature constituted an acceptance of the terms set forth in document (a) and proof is demanded at trial. 11. Denied. It is specifically denied that the document referenced as document (c) and attached to Plaintiffs' complaint constituted any part or condition of Hoffman's and/or Plaintiffs' purchase of Defendant's business. On the contrary, the document (c) was never discussed with or explained to Defendant at or before the sale of his business to Hoffman and/or Plaintiffs or the commencement of his employment with Hoffman and/or Plaintiffs. It was not signed by Defendant until after his employment with began, and only then at the risk of termination of his employment, and without additional consideration. Finally, the document is void ab initio in that the purported June 25, 2002 effective date does not coincide with the July 1, 2002 execution date. By way of further response, Defendant admits that the document (c) speaks for itself and states that which Plaintiffs have re-stated in their complaint. 12. Denied as stated. Defendant admits that Exhibit C to Plaintiffs' complaint speaks for itself; and that the document states that which Plaintiffs have re- stated in their complaint. 13. Denied as stated. Defendant admits that Exhibit C to Plaintiffs' complaint speaks for itself; and that the document contains the text re-stated by 5 Plaintiffs in their complaint. Defendant denies that those portions underlined in Plaintiffs' complaint are or were underlined in the text of Exhibit C to the complaint. 14. Denied as stated. Defendant admits only that Exhibit C to Plaintiffs' complaint speaks for itself; and that the document contains the text re-stated by Plaintiffs in their complaint. The allegation that Defendant's signature on Exhibit C constitutes his legal "acknowledgment" of the legality of Exhibit C or the referenced terms is a question of law to which no response is required. To the extent the allegations are deemed allegations of fact, Defendant denies that his signature constituted an acceptance of the terms set forth in document (a) and proof is demanded at trial. 15. Denied. It is specifically denied that Defendant was "the representative responsible for the sales side of Plaintiffs beverage control and filter system business." Defendant admits only that he was employed by Hoffman and/or Plaintiffs as a salesman. He had no managerial or other similar role in Hoffman's businesses. Defendant admits only that he conducted the sales activities of a salesman for Hoffman and/or Plaintiffs, including those listed. 16. Denied. Defendant specifically denies that he had access to any of the referenced information. The only information to which Defendant had access and/or knowledge were the customer list from his former business that he supplied to Hoffman and Plaintiffs as part of the sale of his business to Hoffman and/or Plaintiffs, and at or near the commencement of his employment.. Defendant did not 6 have access to information pertaining to "trade secrets," and/or "financial and/or budget information." Admitted that Defendant did learn Plaintiffs' standard business procedures and methods of operation in order to fulfill his employment duties. 17. Denied. It is specifically denied that Defendant violated company policy, failed to perform as required, and/or abused company services such as cellular phones and computers for his own personal use, and strict proof is demanded at trial. Defendant denies that he was terminated for the reasons stated, and strict proof is demanded at trial. By way of further response, Defendant performed his duties in a professional and proper manner at all times while employed by Hoffman and/or Plaintiffs. Defendant specifically denies that he abused or in any way mis-used Hoffman's and/or Plaintiffs' cellular phones, and proof is demanded at trial. Defendant carried his own personal cell phone with him at all times in the event it became necessary for him to make a personal call during work. Defendant specifically denies that he used Plaintiffs' computers for personal use. Defendant did not even have access to the computers used in Hoffman's and/or Plaintiffs' business, nor did Hoffman and/or Plaintiffs supply a company computer for Defendant's use at work. Defendant was required to use his own home personal computer to conduct most of his sales dudes on Hoffman and/or Plaintiffs' behalf, which use was not reimbursed by Hoffman and/or Plaintiffs. Finally, Defendant alleges that his termination was illegal and without just cause, as hereinafter set forth. 7 18. Admitted that Hoffman and/or Plaintiffs coerced Defendant to sign the fraudulent and unenforceable document represented as Exhibit D of Plaintiffs' complaint; and that Defendant refused to sign the document. Further, the document falsely and fraudulently represents that Defendant's employment was terminated on June 4, 2002 - in order for Hoffman and/or Plaintiffs to create the illusion that Defendant had performed work on his own and for his own benefit on June 4, 2003, when in fact Defendant worked a full day for Hoffman and/or Plaintiffs on June 4, 2003. Defendant did not become aware that he was terminated until he went into Plaintiffs' place of business on June 5, 2002 to obtain his assignment(s) for that day. 19 Denied. Defendant specifically denies that he installed a filter system at Doc Holiday's Restaurant on June 5 2003. Defendant did install a water filter cartridge on June 5, 2003, model CFS420IMF, which cartridge had been provided to Defendant by Hoffman on May 30, 2003 at approximately 11:00am in the stock room of Hoffman's and/or Plaintiffs' place of business. Hoffman gave the filter to Defendant right after meeting with Defendant on May 30th. At that meeting Defendant advised Hoffman that the kitchen manager at Doc Holiday's told Defendant that they where having scaling problems in their dishwasher. Defendant suggested to Hoffman that they could install this cartridge for a test of hardness, then after a few weeks of using the cartridge they could go back into the restaurant and take a hardness test of the water at the dishwasher. Defendant advised Hoffman that after that process, Hoffman could then make a proposal to the management to sell them a POU (point 8 of use) water softener to feed their dishwasher. Hoffman agreed with Defendant; accompanied Defendant to the stock room; and gave the referenced cartridge to Defendant. The filter obtained from Hoffinan was installed by Defendant - during and as part of his employment by Hoffman and/or Plaintiffs in the existing system on the dishwasher at approximately 1:00 PM on Wednesday, June 4, 2002. Defendant installed the filter on behalf of Hoffman and/or Plaintiffs with the expectation that Hoffman and/or Plaintiffs may be able to sell a water softener to Doc Holiday's. Defendant was still employed by Hoffman and/or Plaintiffs on June 4, 2003 and was not advised of his termination until approximately 12:15 pm on June 5 2002, when he went into Plaintiffs' place of business to receive his work assignments for June 5, 2002. 20. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of the allegation that Hoffinan and/or Plaintiffs allegedly obtained notification from Auntie Anne's Pretzels. Defendant was not privy to or made aware of the fact or terms of the alleged communication, and the allegation is therefore denied, with proof demanded at trial. 21. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding the alleged communications of another employee of Plaintiffs - to which he was not privy - with an un-named representative of an unidentified McDonald's restaurant, and the allegation is therefore denied, with proof demanded at trial. 9 22. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding alleged communications with a Mr. Hassman to which Defendant was not privy, and the allegation is therefore denied, with proof demanded at trial. 23. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding communications with a Mr. Steve Courtney - an alleged communication to which Defendant was not privy and allegedly conducted with a person Defendant does not even know. The allegation is therefore denied, with proof demanded at trial. 24. Denied. Defendant specifically denies that he has ever suggested that any customer of plaintiffs discontinue their services with Plaintiffs, let alone "convince" such customer to terminate their services with Plaintiffs and utilize the services of a fictional company, with strict proof demanded at trial. 25. Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth of Plaintiffs' allegations regarding financial losses that could only be ascertained from records to which Defendant is not and has never been privy. The allegation is therefore denied, with strict proof demanded at trial. 26. Denied. Defendant specifically denies that he engaged in the fictional "side business" alleged, or in any other activity that allegedly competed with his own employer's business. On the contrary, at all times during his employment by 10 Hoffman and/or Plaintiffs, Defendant employed his best efforts - within the limitations imposed by Hoffman's business practices - to further only the interests and business of Hoffman and/or Plaintiffs. Any "lack of performance and low sales volume" attributed to Defendant would not have been due to a lack of effort or any misconduct on the part of Defendant, but primarily due to ineffective and destructive business practices of Hoffman and/or Plaintiffs - such as Hoffman's and/or Plaintiffs' inability to keep the filters required by their customers in stock for prompt installation. 27. Denied. Defendant's allegation is vague, absurd and specifically denied. Defendant is unable to ascertain the meaning of the allegation "Defendant improperly accused Plaintiffs principal of wrongdoing as a 'pre-emptive strike,"' but avers that there were no improprieties on his part for Hoffinan and/or Plaintiffs to discover. To the extent the alleged "pre-emptive strike" refers to Defendant's report to law enforcement officials that agents of Hoffman and/or Plaintiffs entered Defendant's home without his permission; accessed his personal computer in his home without his permission; extracted personal information from his personal computer and attempted to covertly monitor Defendant's computer-related activities, Defendant admits that he made such report; that the investigation of Plaintiffs' criminal activities is ongoing; and that the Commonwealth of Pennsylvania is in the process of seeking an indictment in the Court of Common Pleas of Cumberland County for Plaintiffs' criminal activities. Otherwise, after reasonable investigation Defendant has 11 insufficient information to form a belief as to the truth of the allegation. The allegation regarding a "pre-emptive strike" is therefore specifically denied with proof demanded at trial. By way of further response, Defendant has not violated any "Confidentiality Agreement," let alone the unenforceable "Agreement" at Exhibit C of Plaintiffs' complaint. Nor has Defendant in any way disparaged Hoffman and/or Plaintiffs. On the contrary, Defendant believes and therefore avers that Hoffinan has disparaged Plaintiff in his pursuit of other employment. 28. Denied. Defendant specifically denies the allegations, with proof demanded at trial. Defendant doesn't even work in his former trade; is not "soliciting clients" on behalf of himself or his fictional new employer; and has not violated any alleged "Confidentiality Agreement" with Hoffman and/or Plaintiffs. Defendant specifically denies that he has disparaged or maligned Hoffman and/or Plaintiffs, and strict proof is demanded at trial. 29. Denied. Defendant specifically denies that he engaged in any of the activities falsely alleged in Plaintiffs' complaint. Defendant specifically denies that he has in any way violated any alleged agreement with Hoffman and/or Plaintiffs. Tee Agreement to which Plaintiffs appear to refer is unenforceable, and strict proof otherwise of any of these false allegations is demanded at trial. 30. Denied. Plaintiffs' false and fictional beliefs and averments are specifically denied. Defendant ceased doing business for himself or his former company - Beverage Equipment Specialist CTES") - on or about June 28, 2002. 12 Defendant has never made or solicited any sales for or on behalf himself or his former company, or ever represented or even mentioned the name of his former company during his employment by Hoffman and/or Plaintiffs. Defendant specifically denies that he operated any side business, or that he conducted any business for his former company beyond the date of June 28, 2002. Defendant specifically denies that he has operated any side business of any kind, let alone a side business that would be in competition with Hoffman and/or Plaintiffs before, during or after his termination. Plaintiffs' false allegations are denied, with strict proof of these false allegations demanded at trial. 31. Denied. It is specifically denied that Defendant was ever involved in any of the misconduct falsely alleged by Plaintiffs. On the contrary, Defendant was forced to file for bankruptcy following the illegal termination of his employment by Hoffman and/or Plaintiffs. The bankruptcy did not relieve Defendant of all debt from his former company, which debts still remain in effect and which debts are being paid off by Defendant in burdensome monthly installments. The allegation that Defendant did not intend to work for Plaintiffs for a lengthy period of time is false and denied. Defendant sold his business to Plaintiffs in the hope that his new employment would result in a long and lasting employment relationship with Hoffman and/or Plaintiffs. 32. Denied. It is specifically denied that Defendant has any proprietary information of any kind belonging to Hoffman and/or Plaintiffs. Defendant does not 13 possess, control or even need any of Plaintiffs alleged trade secrets, computerized records, documents, client lists, client information, expiration lists, expiration data, proprietary information, or other trade secrets, because he no longer even works in his former occupation. In fact, Defendant never had access to these records while employed by Hoffman and/or Plaintiffs. By way of further response, the only records possessed by Defendant were the water filter accounts transferred to Hoffman and/or Plaintiffs upon his employment with Plaintiffs. Further, Defendant was only occasionally provided such records from Hoffman and/or Plaintiffs as would permit him to make contact with individual customers, such as contact name, phone number and sometimes addresses. These false allegations are specifically denied, with proof demanded at trial. 33. The allegations are ultimate question of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied. Defendant is not engaging - nor has he ever engaged in any breach of any alleged or enforceable confidentiality agreement; he is not violating nor has he ever violated any fiduciary duties allegedly owed to Hoffman and/or Plaintiffs. Defendant does not know nor has he ever known any of Plaintiffs' "trade secrets." Therefore, Defendant was and is incapable of converting, nor has he ever obtained, accessed or converted "trade secrets." Defendant does not practice, nor has he ever practiced unfair competition and intentional interference with any contractual relations between Plaintiff and any other person or entity. 14 COUNT I - BREACH OF OFFER TO PURCHASE 34. Defendant incorporates all responses hereinbefore by reference thereto, as thought set forth in full. 35. Defendant admits only that terms were reached by which Hoffman and/or Plaintiffs purchased Defendant's former business; that Hoffman and/or Plaintiffs employed Defendant as a sales representative as a consequence of the sale of his business to Hoffman and/or Plaintiffs; and that the terms of the sale and the terms and conditions of Defendant's employment are generally described in Exhibits A and B, respectively, of Plaintiffs' complaint. 36. Defendant admits only that an agreement was reached between Defendant and Plaintiffs for the sale of Defendant's business to Plaintiffs, pursuant to the terms generally described in Exhibit A of Plaintiffs' complaint; and that as a consequence of such sale Defendant became employed by Hoffman and/or Plaintiffs as a sales representative pursuant to the terms generally described in Exhibit B of Plaintiffs' complaint. Defendant specifically denies that any alleged "confidentiality agreement" or the agreement set forth at Exhibit C of Plaintiffs' complaint formed any part of the sale of Defendant's business to Hoffman and/or Plaintiffs or to Defendant's employment by Hoffman and/or Plaintiffs and proof thereof is demanded at trial. 37. Denied. The allegation is a question of law to which a response is not required. To the extent deemed to be allegations of fact, the allegations are denied for 15 the reasons repeated ad museum hereinbefore. It is specifically denied that Defendant did not perform his obligations under the terms of sale of his former business to Plaintiffs. Defendant did not continue to operate a fictional separate business; Defendant transferred the entire inventory in his possession to Hoffman's businesses. On June 12, 2002 Defendant discussed with Hoffman that the estimate of existing inventory provided to her would change daily until the business of BES closed upon completion of the transfer. During the 2 weeks between the estimation of Defendant's inventory and the transfer of Defendant's inventory to Plaintiffs, the amount of inventory necessarily decreased because Defendant continued to service customers without replenishing or needing to replenish his inventory. As of the close of his former business on June 28, 2002, an inventory of approximately $4,955.35 remained. This inventory amount was discussed with Hoffman on or about July 2, 2002. Hoffman specifically advised Defendant "I am not going to set here and count every piece of inventory. We agreed upon what inventory was received as completion of the transfer of business and all of BES inventory." Further, Defendant transferred to Hoffman and/or Plaintiffs more than the agreed amount of inventory, including items of shipping and displays, shipping boxes, a red wire display rack, posters and frames, a parts box in which to keep o-rings and other parts, shipping tape dispensers and over 200 equipment labels. It is specifically denied that Defendant breached any alleged or enforceable "Confidentiality/Non-compete Agreement" with Hoffman and/or Plaintiffs, and strict proof is demanded at trial. 16 38. Denied as stated. It is admitted only that Hoffman followed through with her offer to purchase Defendant's business and to employ Defendant, generally as per the terms of Exhibits A and B of Plaintiffs Complaint, respectively. It is denied that Exhibits A and B represent the entire "Agreements" between the parties; and it is denied that Plaintiffs performed fully as required under the complete agreement between the parties, as verbally modified by the parties. Admitted that Hoffman and/or Plaintiffs' agreed to assume one of Defendant's debts - the $8,000 obligation to Cuno, Inc. Because Plaintiffs were making periodic payments on that obligation, Defendant is unaware if that obligation was ever paid in full. The allegation is therefore denied, with proof demanded at trial. 39. Denied. The allegation is a question of law to which a response is not required. To the extent deemed to be allegations of fact, the allegations are denied. Defendant did not continue - nor could he continue to operate his former business while employed by Hoffman and/or Plaintiffs. Defendant transferred all agreed inventory to Hoffman and/or Plaintiffs, as described in Paragraph 37 hereinbefore, and therefore could not have committed a breach of any alleged "contract," let alone a "material breach of an alleged contract." It is specifically denied that Hoffman and/or Plaintiffs had an enforceable "contract" with Defendant in any event, as hereinafter set forth; or that Hoffman and/or Plaintiffs fully performed all of their obligations under any alleged contract. 17 40. Denied. Defendant denies that he breached any alleged contract with Plaintiffs; or that Plaintiffs have been injured by any act or omission of Defendant. To the extent Defendant has been injured, such injury is as a result of mismanagement or other destructive business practices. After reasonable investigation, Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegation that Plaintiffs have been damaged in any amount, let alone in the amount of $11,500.00. The allegations are denied with strict proof demanded at trial. 41. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to what Plaintiffs would have done under any given circumstances, and the allegation is therefore denied, with proof demanded at trial. Further, Defendant did not intend nor engage in any activity "independently and outside of the auspices of Plaintiffs." This false and unsupported allegation is denied, with proof demanded at trial. 42. Denied. It is specifically denied that Defendant breached any alleged agreement with Plaintiffs; or that Plaintiffs were damaged in any way by any alleged act or omission of Defendant. Defendant has been falsely accused of the acts of misconduct attributed to him without a shred of evidence provided by Hoffman and/or Plaintiffs to support their false claims. After reasonable investigation, Defendant is without sufficient information to form a belief as to how Hoffman and/or Plaintiffs could erroneously believe that any business loss they have suffered is 18 attributable to Defendant; or that they have been damaged by any alleged act or omission of Defendant, and proof is demanded at trial. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. COUNT II - BREACH OF EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT 43. Defendant incorporates all responses hereinbefore by reference thereto, as thought set forth in full. 44. Denied. It is specifically denied that Exhibit C to the complaint is enforceable or that Defendant has violated any term of such alleged agreement, even if found to be enforceable. On the contrary, Defendant has at all times complied with and performed all expected and agreed acts and/or refrained from performing all prohibited acts of either Exhibit B or C of the complaint. 45. Denied. For the reasons set forth in detail hereinbefore and hereinafter, Defendant denies that he is or was ever bound by any alleged "confidentiality agreement" with Hoffman and/or Plaintiffs Defendant denies that any such agreement is enforceable. Even if enforceable, Defendant denies that he has failed to adhere to any term of the alleged Agreement, and proof of these false allegations is demanded at trial. 19 46. Denied. Defendant did not violate any alleged agreement in the first instance, and therefore cannot continue to violate any such alleged, perceived and/or contrived contractual obligations, and proof thereof is demanded at trial. 47. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to form a belief that Plaintiffs have suffered and/or will continue to suffer financial loss. To the extent they do continue to suffer financial loss, such loss is not attributable to Defendant, but to the irresponsible, destructive and self-induced business practices of Hoffman and/or Plaintiffs, including the illegal termination of Defendant's employment. Defendant specifically denies any knowledge of or responsibility for any alleged "financial loss" that Plaintiffs are attempting to attribute to him. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. COUNT III - MISAPPROPRIATION OF TRADE SECRETS 48. Defendant incorporates all responses hereinbefore by reference thereto, as thought set forth in full. 49. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to what Plaintiffs "maintain," in that Defendant was not privy to, nor did he have access to Plaintiffs' alleged "administrative, financial and budgetary reports as well as client lists and reports 20 including expiration lists and pricing data." By way of further response, Defendant avers that there was no separation of information maintained by these sham corporations, and proof of this false allegation is demanded at trial. 50. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to whether or not Hoffman and/or Plaintiffs possess "this information," and/or how Hoffman and/or Plaintiffs feel about it if they do possess such information. The allegation is therefore denied, with strict proof is demanded at trial. 51. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of whether such information existed; whether it was purchased; or when such alleged information was purchased. Defendant was not privy to this information. The allegation is therefore denied, with proof demanded at trial. 52. Denied. The allegations are ultimate question of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. By way of further response, after reasonable investigation, Defendant is without sufficient information to form a belief as to what alleged reasonable steps and precautions were allegedly taken by Hoffman and/or Plaintiffs to guard their alleged trade secrets, and proof is demanded at trial. By way of further response, the alleged Confidentiality Agreement presented to Defendant is void and unenforceable. 21 53. Denied. Defendant learned no trade secrets from Plaintiffs, nor did Defendant have access to any data base that may have contained such "secrets." On the contrary, Defendant was the person who imparted all knowledge within his possession to Hoffman and/or Plaintiffs - knowledge gained from years of experience with his former company his prior career. 54. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. Defendant did not even obtain, let alone misappropriate any alleged proprietary information and/or trade secrets from Plaintiffs, and proof is demanded at trial. 55. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to form a belief that Plaintiffs have suffered and/or will continue to suffer financial loss. To the extent they have suffered any alleged financial loss after Defendant's termination, such loss is not attributable to Defendant, but to the irresponsible and destructive business practices of Hoffman and/or Plaintiffs, including the illegal termination of Defendant's employment. Defendant specifically denies any knowledge of or responsibility for any alleged "financial loss" that Plaintiffs own actions have caused but which Plaintiffs are maliciously attempting to attribute to him. 22 WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. COUNT IV - BREACH OF FIDUCIARY DUTY 56. Defendant incorporates his responses to the all of the foregoing allegations by reference thereto, as though set forth in full. 57. Denied. Defendant did not have access to - nor was he entrusted with or privy to any of the information alleged, and proof thereof is demanded at trial. 58. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. Defendant did not have access to - nor was he "entrusted with" any of the information alleged, and proof thereof is demanded at trial. 59. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. As repeatedly set forth hereinbefore - which specific denials are incorporated herein - Defendant never maintained a "book of business" or any business - in competition with Hoffman and/or Plaintiffs or otherwise, nor did he breach any alleged fiduciary duty to Hoffman and/or Plaintiffs. On the contrary, Defendant conducted himself at all 23 times in a manner that was in the best interest of his former employers, and strict proof otherwise is demanded. 60. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. As set forth in Paragraph 59 hereinbefore, Defendant did not operate any business whatsoever during his employment by Hoffman and/or Plaintiffs, let alone a business in competition with his own employer, and strict proof is demanded at trial. 61. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, with proof thereof demanded at trial. 62. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation, and proof is demanded at trial. Defendant repeats that if Hoffman and/or Plaintiffs suffered "great financial loss," it was not as a result of his faithful and concerted efforts exclusively for and on behalf of his former employer, but as a result of the destructive and/or incompetent business practices of Hoffman and/or Plaintiffs described hereinbefore. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. 24 COUNT V - UNFAIR COMPETITION 63. Defendant incorporates his responses to the all of the foregoing allegations by reference thereto, as though set forth in full. 64. Denied. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, as set forth hereinbefore, with proof thereof demanded at trial. Defendant's employer next following his employment by Plaintiffs wasn't even in the same business as Plaintiffs, nor did Defendant. 65. The allegations are ultimate questions of law to which a response is not required. To the extent determined to be allegations of fact, they are specifically denied, as set forth hereinbefore, with proof thereof demanded at trial. 66. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation, and proof is demanded at trial. Defendant repeats that if Hoffman and/or Plaintiffs suffered "great financial loss," it was not as a result of Defendant's faithful and concerted efforts exclusively for and on behalf of his former employer, but as a result of the destructive and/or incompetent business practices of Hoffman and/or Defendants described hereinbefore. WHEREFORE, Defendant requests that this claim be dismissed; and that Defendant be awarded the legal fees and expenses of defending against this vexatious action. 25 COUNT VI - INTENTIONAL INTERFERENCE WITH CONTRACTUAL. RELATIONS 67. Defendant incorporates herein all of his responses to the all of the foregoing allegations by reference thereto, as though set forth in full. 68. Denied. At the outset of his employment with Hoffman and/or Plaintiffs, Defendant was aware only of the accounts from his former business, which accounts were included in the sale of Defendant's business to Hoffman and/or Plaintiffs. Following the sale of Defendant's business, Defendant serviced those accounts solely in good faith and exclusively on behalf of Hoffman and/or Plaintiffs. Plaintiffs' false allegations that Defendant was in competition with Plaintiffs is a malicious and paranoid attempt to harm Defendant for his perceived role in losses suffered by Hoffman and/or Plaintiffs resulting their wrongful termination of Defendant and from their own incompetence and destructive business practices. 69. Denied. Defendant did not contact clients of Plaintiffs after his termination; Defendant has never disparaged Hoffman and/or Plaintiffs in any way before, during or after his employment by Plaintiffs. This false allegation is denied, with proof demanded at trial. 70. Denied. Defendant did not contact any of Plaintiffs' clients, so he could not have disparaged Hoffman and/or Plaintiffs. As set forth at length hereinbefore, Defendant did not interfere in any way with any contract between Hoffman and/or Plaintiffs and any of their clients. 26 71. Denied. The allegation is an ultimate question of law to which a response is not required. To the extent determined to be an allegation of fact, same is specifically denied. Defendant did not interfere with any contract between Plaintiffs and any of their clients in the first instance. Therefore, he could not possibly have interfered without privilege or justification. 72. Denied. The allegation is an ultimate question of law to which a response is not required. To the extent determined to be an allegation of fact, same is specifically denied. Defendant denies engaging in any of the conduct falsely and maliciously attributed to him by Hoffman and/or Plaintiffs. 73. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation, and proof is demanded at trial. Defendant repeats that if Hoffman and/or Plaintiffs did suffer "great financial loss," it was not as a result of Defendant's faithful and concerted efforts exclusively for and on behalf of his former employer, but as a result of the destructive and/or incompetent business practices of Hoffman and/or Defendants described hereinbefore, including the wrongful and unjustified termination of Defendant. WHEREFORE, Defendant requests that all of the foregoing meritless claims be dismissed; and that Defendant be awarded the legal fees and costs to which he a party is entitled pursuant to 42 Pa.C.S. §2503(9) for the arbitrary, vexatious and/or bad faith commencement of his action by Hoffman and/or Plaintiffs. 27 NEW MATTER NOW COMES the Defendant, Douglas Deimler, to assert the following New Matter and Affirmative Defenses relative to Plaintiffs' claims, by newly-numbered Paragraphs, as follows: 1. Defendant's Counterclaim against Hoffman and Plaintiffs for Invasion of Privacy (Counterclaim Count II) is res judicata, in that Plaintiffs, by Hoffman, have been convicted of the crime of Criminal Solicitation - Unlawful Duplication, which conviction is - in effect - an adjudication of Defendant's claim for Invasion of Privacy. 2. The "Employee Confidential Information and Inventions Agreement" attached to Plaintiffs' complaint is void for lack of consideration. 3. The Plaintiffs are guilty of la hes, in that the Plaintiff has failed or refused to take any action in this matter for nearly 2 years. 4. The Plaintiffs and/or Emily Hoffman are in violation of Rule 1023.1, in that a. They have filed Preliminary Objections, after nearly 2 years of inactivity in this matter, solely for the improper purposes of harassment of Defendant; unnecessary delay and/or to needlessly increase the cost of this litigation; b. They have asserted preliminary objections and other legal contentions that are not warranted by existing law or by an extension for the nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; 28 C. The factual allegations of their preliminary objections have no evidentiary support; and 5. The Plaintiffs and/or Emily Hoffman are guilty of a fraud on this Court, in that Defendants they have filed preliminary objections against Defendant's Counterclaims while they remain a party debtor to bankruptcy proceedings in Bankruptcy Court, thereby ostensibly protected by the automatic stay applicable to such actions from counteraction by Defendant. 6. The Plaintiff corporations are sham corporations, organized, operating and existing for the sole purpose of protecting principal Emily Hoffman from liability for her wrongful and/or illegal acts and/or omissions. 7. As sham corporations, Plaintiffs were without legal authority to enter into the alleged agreements referenced in Plaintiffs' complaint, and/or without legal authority to enforce said alleged Agreements. 8. Defendant is entitled to pierce the corporate veil of the sham corporations named as Plaintiffs in this action, in that Plaintiffs and Plaintiffs' principal - Emily Hoffman - have failed to adhere to corporate formalities; substantially intermingled corporate and personal affairs; and used the corporate form to perpetrate a fraud against Defendant. In addition, Hoffman used her control of Plaintiff corporations and their assets to further her own personal interests and her vendetta against Defendant. 29 9. Defendant has a bankruptcy petition pending in United States Bankruptcy Court, and this action is in violation of the automatic stay attached to bankruptcy claims. 10. Plaintiffs' ostensible and alleged claim(s) are or will be discharged in bankruptcy. 11. Any alleged Agreements that Plaintiffs alleged have been violated by Defendant are void and unenforceable for failure of consideration, including the "Employee Confidential Information and Inventions Agreement" set forth as Exhibit C of Plaintiffs' complaint. 12. Any alleged Agreements between Hoffman and/or Plaintiffs and Defendant are void and unenforceable because Defendant's alleged agreement to the terms of his employment were induced by fraud on the part of Hoffman and/or Plaintiffs. 13. Defendant is entitled to an award of the legal fees and expenses of defending against this malicious cause of action pursuant to 42 Pa.C.S. §2503(9), in that the commencement and continued prosecution of this action by Hoffman and/or Plaintiffs was and continues to be arbitrary, vexatious and in bad faith. 14. This action was commenced by Hoffman as a vengeful effort to harm, demean, denigrate and vex Defendant for Defendant's report to authorities of criminal acts by Hoffman, Plaintiffs and/or their agents in invading the privacy of Defendant's home without permission; tampering with Defendant's home computer; 30 and illegally extracting information from Defendant's home computer without his knowledge or consent. 15. Any damages allegedly experienced by Plaintiffs were as a result of Plaintiffs' own contributory negligence, acts and/or omissions. 16. Some or all of Plaintiffs' claims are invalid as having been filed beyond the applicable statute of limitations. 17. On Tuesday, June 28, 2005 Plaintiffs were convicted of the 3rd Degree Felony of Criminal Solicitation - Unlawful Duplication, as more fully set forth as Exhibit A, attached hereto and incorporated herein. COUNTERCLAIMS COUNT I - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Deimler v. Hoffman Mechanical Inc., Creative Distribution, Inc. and Emily Hoffman 18. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; and the New Matter set forth at Paragraphs 1 through 17 hereinbefore, are incorporated herein as though set fort in full. 19. On May 1, 2003, Emily Hoffman (hereinafter "Hoffman"), acting individually and/or on behalf of and/or with the consent of and/or at the direction of Plaintiffs Hoffman Mechanical, Inc. and/or Creative Distribution (Hereinafter collectively referred to as "Plaintiffs") lured Defendant away from his home on the pretext of assigning work to Defendant. 31 20. After Hoffman was aware that Plaintiff was no longer at home, Hoffman directed her agents or those of Plaintiffs to enter Defendant's home without his knowledge or permission, and extract information from Defendant's personal home computer; all as more fully set forth at Exhibit A hereto. 21. When Defendant became aware of the invasion of his home by Hoffman's agents, he reported their actions to the District Attorney's Office of Cumberland County. 22. The District Attorney's Office has obtained a criminal conviction against Plaintiffs - and Hoffman by virtue of the sham nature of Plaintiffs and Hoffman being their alter ego - for the actions of Hoffman and her agents, as more fully set forth at Exhibit A, attached hereto and made a part hereof. 23. This civil action was filed against Defendant solely as reprisal for Defendant having reported Hoffman's illegal acts to the authorities. 24. The acts/omissions of Hoffman and Plaintiffs in invading Plaintiffs home and personal computer without his knowledge or consent were intentional, extreme and outrageous conduct, recklessly and maliciously designed and intended to cause Defendant severe emotional distress. 25. Hoffman's act of causing this meritless, malicious and retaliatory civil action to be filed; and to continue to prosecute this civil action were and are extreme and outrageous conduct intentionally or recklessly designed and intended to cause Defendant severe emotional distress. 32 26. As a result of Hoffman's extreme and outrageous acts set forth hereinbefore, Defendant has suffered severe emotional distress, in that Defendant has lost gainful employment and been forced into bankruptcy as a direct consequence of the actions of Hoffman and/or Plaintiffs; and has consequently suffered from depression, anxiety, loss of sleep and loss of enjoyment of life. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. COUNT II - INVASION OF PRIVACY Deimler v. Hoffman Mechanical; Creative Distribution, Inc., and Emily Hoffman 27. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; Defendant's New Matter set forth at Paragraphs 1 through 17 hereinbefore; and Paragraphs 18 through 26 of Defendant's first counterclaim are incorporated herein by reference thereto as though set fort in full. 28. The acts of Hoffman, acting individually and/or on behalf of and/or with the consent of and/or at the direction of Plaintiffs, in directing her/their agents to invade Defendant's home without his knowledge or consent; and invade his home personal computer without his knowledge or consent were unreasonable intrusions upon his privacy and seclusion. 33 29. As a result of the extreme and outrageous conduct of Hoffman and/or Plaintiffs, intentionally or recklessly designed and intended to cause Defendant severe emotional distress causing and/or directing the invasion upon Defendant's privacy, seclusion and home, as set forth hereinbefore, Defendant has suffered severe emotional distress. 30. Plaintiffs, by and through Hoffman, have been convicted of the Third Degree Felony of Criminal Solicitation - Unlawful Duplication, which conviction is - in effect - an adjudication of Defendant's claim for Invasion of Privacy WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. COUNT III - WRONGFUL USE OF CIVIL PROCEEDINGS Deimler v. Hoffman and Plaintiffs 31. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 17 hereinbefore; and in Paragraphs 18 through 30 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 32. Following his termination, Defendant applied for unemployment compensation benefits. 34 33. A hearing in the matter was scheduled in the matter, at which the Defendant appeared; but at which Hoffman appeared; refused to participate; and left the appeal hearing room. 34. The hearing was conducted in Hoffman's absence, and Defendant's claim was adjudicated in his favor and against Hoffman and/or Plaintiffs. 35. Hoffman and/or Plaintiffs opposed Defendant's claim for unemployment compensation benefits for the sole purpose of retaliating against Defendant for the imagined and alleged acts that have given rise to Plaintiffs' the meritless claims set forth in Plaintiffs' complaint. 36. Unemployment compensation benefits were awarded to Defendant despite the feigned opposition to the claim by Hoffman and/or Plaintiffs. 37. Hoffman and/or Plaintiffs acted in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the adjudication of Defendant's claim for unemployment compensation benefits. 38. The unemployment compensation proceedings terminated in favor of Defendant. 39. As a result of the wrongful conduct of Hoffman and Plaintiffs, Defendant has suffered harm to his reputation; incurred substantial legal fees and expenses; and suffered severe emotional distress. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or 35 Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just, and/or as may otherwise be available to Defendant pursuant to 42 Pa.C.S. §8353. COUNT IV - FRAUD Deimler Y. Hoffman and Plaintiffs 40. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 17 hereinbefore; and in Paragraphs 18 through 39 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 41. Defendant agreed to sell his business to Hoffman and/or Plaintiffs, and to accept employment from Hoffman and Plaintiffs based upon representations that Defendant would have secure and lucrative employment for the foreseeable future; and that Hoffman and/or Plaintiffs would provide sufficient support to allow Defendant to successfully perform the duties of his employment. 42. The representations of Hoffman and Plaintiffs were material and the cause of Defendant's agreement to sell his business to Plaintiffs and/or Hoffman. 43. The representations made by Hoffman to Defendant were made falsely, in order to allow Hoffman to acquire Defendant's business solely for the purpose and with the intent of acquiring Defendant's customers and then terminating Defendant's employment with Hoffman and/or Plaintiffs. 36 44. Hoffman's representations were made with the intent of misleading Defendant into selling his business to Hoffman and/or Plaintiffs. 45. Defendant justifiably relied on Hoffman's representations of secure, tenured employment and financial gain. 46. The loss of Defendant's business; and the wrongful termination by Hoffman and/or Plaintiffs of Defendant's subsequent employment with Hoffman and/or Plaintiffs were a proximate result of Defendant's reliance on Hoffman's promises. 47. The loss of Defendant's business based on the fraudulent representations of Hoffman has resulted in severe emotional distress to Defendant; the loss of his employment; and the loss of business opportunities. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. COUNT V - PA WAGE PAYMENT AND COLLECTION LAW Deimler v Hoffman and Plaintiffs 48. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 17 hereinbefore; and in Paragraphs 18 through 47 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 37 49. Defendant was employed by Plaintiffs from on or about July 1, 2002 until June 5, 2003. 50. At the time of his termination effective June 5, 2003, Plaintiffs owed wages to Defendant wages for 13 days that Defendant worked for Plaintiffs from approximately May 15, 2003 to June 4, 2003. 51. Hoffman and /or Plaintiffs failed or refused to pay the final and all of the wages to which Defendant was entitled; and continue to refuse to pay such unpaid wages. 52. In addition to failing to pay Defendant's wages for his last 2 weeks of work, Plaintiffs have failed or refused to pay to Claimant approximately $2,000.00 in incentive bonuses and a $500.00 auto allowance. 53. Plaintiffs paid Defendant's wages for 3 of his final 13 days of employment, but have failed or refused to pay the balance of 2 weeks of wages due and owing to Defendant, despite repeated requests for payment. 54. The regular payday by which the unpaid wages should have been paid was June 6, 2003. 55. Plaintiffs have failed or refused to pay the said wages due by the next regular payday, in violation of Section 5 of the Act of the Pennsylvania Wage Payment and Collection Law ("Act"), 43 Pa.C.S. §260.5(a). 56. Plaintiffs have not paid the wages within 15 days of June 6, 2003, and are therefore also in violation of Section 3(a) of the Act, 43 Pa.C.S. §260.3(a). 38 57. Plaintiffs also failed or refused to provide notice to its employees of the time and place of payment of wages, in violation of Section 4 of the Act, 43 Pa.C.S. §260.4. 58. As a result of the wrongful failure or refusal of Plaintiffs and Hoffman to pay his wages, as hereinbefore set forth, Defendant has suffered and continues to suffer pecuniary loss. WHEREFORE, Defendant requests payment of all wages due and owing to him from Plaintiffs; a 10% penalty pursuant to Section 9.1(c) of the Act, 43 Pa.C.S. §260.9(a)(c); and an award of legal fees and expenses in pursuing a legal remedy to obtain payment of wages due and unpaid. COUNT VI -'WRONGFUL TERMINATION Deimler v. Hoffman and Plaintiffs 59. The allegations set forth in Defendant's responses to the averments of Plaintiffs' complaint; in Defendant's New Matter set forth at Paragraphs 1 through 17 hereinbefore; and in Paragraphs 18 through 59 of Defendant's counterclaims are incorporated herein by reference thereto as though set fort in full. 60. By letter dated June 2, 2004, received by Hoffman on or about June 3, 2004, Defendant's counsel requested that he be permitted to review Defendant's personnel file. 61. Hoffman and/or Plaintiffs failed or refused to respond to Defendant's request. 39 62. Hoffman and/or Plaintiffs failed or refused to permit Defendant to review his personnel file, as required by the Personnel Files Inspection Act. 63. Defendant's request was made while Defendant was still employed by Hoffman and/or Plaintiffs. 64. Defendant had a right to review his personnel file pursuant to the Personnel File Inspection Act, 43 Pa.C.S. §§1321, et seq. 65. Defendant's failure or refusal to permit Defendant to review his personnel file was in violation of the Personnel File Inspection Act. 66. Defendant was terminated June 5, 2004 because he requested review of his personnel file. 67. Termination of an employee for requesting review of the employee's personnel file, to prevent and/or interfere with the exercise of the employee's right granted by the Personnel Files Inspection Act to review of such personnel file, violates the public policy of this Commonwealth, by frustrating the rights guaranteed to employees by the Personnel File Inspection Act, 43 Pa.C.S. §1322, et seq. 68. Hoffman's and/or Plaintiffs' wrongful termination of Defendant has caused Defendant to experience and suffer severe emotional distress; pecuniary loss; and damage to his career. 40 69. Hoffman's wrongful termination of Defendant has resulted in the loss to Defendant of the wages and benefits that he would and should have received from continued employment, as well as the loss to Defendant of the ability to work in his chosen career. WHEREFORE, Defendant requests a jury trial and an award thereafter of such damages - including compensatory and punitive damages - from Hoffman and/or Plaintiffs in excess of $25,000.00, and/or such other legal and equitable relief as will make Defendant whole, or as the Court may deem proper and just. Date: ?o c7 Co Keith E. Kendall, Esq. Attorney for Defendant 2415 N. Front Street Harrisburg, PA 17110 (717) 236-9539 PA Attorney ID No. 42910 41 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CP-21-CR-1060-2005 CHARGE: CRIMINAL SOLICITATION - UkLAWFUL DUPLICATION HOFFMAN MECHANICAL, INC. OTN: H929647-5 AFFIANT: DET. JEFFERY FRANKS TRANSCRIPT OF PROCEEDINGS IN RE: GUILTY PLEA & SENTENCING Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Tuesday, June 28, 2005, in Courtroom No. 5 APPEARANCES: MICHELLE H. SIBERT, Esquire Office of the District Attorney F. STEPHENSON MATTHES, Esquire For the Defendant 1 MS. SIBERT: No. 73 on the arraignment list, 2 Commonwealth vs. Hoffman Mechanical, Inc. 3 Your Honor, Emily Hoffman is here on behalf 4 of Hoffman Mechanical, Inc. She's here with privately 5 retained counsel, Stephenson Matthes, Esquire. This is the 6 time and place for arraignment. The defense has the 7 discovery packet, and Emily Hoffman will be entering a plea 8 of guilty on behalf of Hoffman Mechanical, Inc. She will be 9 pleading guilty as charged in the information to Criminal 10 Solicitation - Unlawful Duplication, a felony of the third 11 degree, maximum fine $15,000.00, maximum term of 12 imprisonment 7 years. 13 The facts are that on May 1st, 2003, a Doug 14 Deimler worked for Hoffman Mechanical, Inc., in Cumberland 15 County. As an employee of Hoffman Mechanical, he had some 16 of the employees at his home in Cumberland County installing 17 an air conditioning unit. While some of the employees were 18 at his home, a Patrick Rooks entered his home, accessed Mr. 19 Deimler's computer, and copied information from his 20 computer. Patrick Rooks did this at the request of Emily 21 Hoffman on behalf of Hoffman Mechanical, Inc., and he did 22 this without permission of Doug Deimler. Emily Hoffman, nor 23 anyone from Hoffman Mechanical, had any permission to access 24 his computer and copy information. 25 THE COURT: Are the facts as related by the 2 1 District Attorney what happened in this case, ma'am? 2 MS. HOFFMAN: Yes. 3 THE COURT: Do you understand that the 4 corporation could be fined up to $15,000.00? 5 MS. HOFFMAN: Yes. 6 THE COURT: Have you reviewed the guilty plea 7 colloquy with your attorney? 8 MS. HOFFMAN: Yes. 9 THE COURT: Do you understand the 10 corporation's rights as set forth on that form? 11 MS. HOFFMAN: Yes. 12 THE COURT: Do you have any questions 13 regarding the rights you are giving up on behalf of the 14 corporation? 15 MS. HOFFMAN: No. 16 THE COURT: Do you have the authority to 17 enter this plea on behalf of the corporation? 18 MS. HOFFMAN: Yes, I do. 19 THE COURT: Is this what the corporation 20 wants to do? 21 MS. HOFFMAN: Yes. 22 THE COURT: We'll accept the plea. 23 (The following Order was entered by the 24 Court:) 25 "AND NOW, this 28th day of June, 2005, the 3 I Defendant having tendered a plea of guilty as charged, said 2 plea is accepted and recorded." 3 THE COURT Obviously, I can't put a 4 corporation in jail. 5 MS. SIBERT: Correct. 6 THE COURT: I would be prepared to sentence 7 today. 8 MS. SIBERT: Having discussed this case with 9 defense counsel and Your Honor, we would ask for costs and a 10 fine of $1,500.00. 11 THE COURT: Anything that you want to say, 12 sir? 13 MR. MATTHES: That's agreeable. 14 THE COURT: Anything that you want to say, 15 ma'am? 16 THE DEFENDANT: No. 17 (The following Order was entered by the 18 Court:) 19 "AND NOW, this 28th day of June, 2005, the 20 Defendant having appeared for sentence, and having waived a 21 sentencing report, the sentence of the Court is that it pay 22 the costs of prosecution, plus a fine of $1,500.00." 23 (The proceeding was concluded.) 24 25 4 e CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. j Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Dat? D ?? 5 A I, Douglas Deimler, the Defendant in this civil action, verify that the statements made in the foregoing Defendant's Answer to Defendant's Amended Complaint with Amended New Matter and Amended Counterclaims are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to nnsworn falsification to authorities. Date: / 7 -Ya 0 e 0 (--, CERTIFICATE OF SERVICE I, Keith E. Kendall, Esq., Attorney for the Defendant, Douglas Deimler, certify that I have this date served a true and correct copy of Defendant's Answer, Amended New Matter and Amended Counterclaims upon the Plaintiffs Attorney by depositing a true and correct copy of the same in the U.S. Mail, postage pre-paid, return receipt requested, addressed as follows: Paige Macdonald-Matthes, Esq. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Date: ?a ?L 4eith E. Ken all, Esq. Attorney for Defendant ?? TI G ?, ? `, `- m P`, -- -'-5 ?' `3 ?? ' i J `w _ ?-? • C L-' C ,:,? I HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC., Plaintiffs V. DOUGLAS L. DEIMLER, Defendant. V. EMILY HOFFMAN, HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. Counterclaim Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 2004-2494 P CIVIL ACTION - IN LAW NOTICE TO PLEAD To: Douglas L. Deimler c/o Keith Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 You are hereby notified to file a written response to the enclosed Preliminary Objections to Defendant's Amended Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: July 17, 2006 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorneys for Plaintiffs/Counterclaim Defendants HOFFMAN MECHANICAL, INC. and : IN THE COURT OF COMMON PLEAS CREATIVE DISTRIBUTION, INC., : CUMBERLAND COUNTY, Plaintiffs V. DOUGLAS L. DEIMLER, Defendant. V. PENNSYLVANIA : DOCKET NO.: 2004-2494 P : CIVIL ACTION - IN LAW EMILY HOFFMAN, HOFFMAN MECHANICAL, INC. and CREATIVE DISTRIBUTION, INC. Counterclaim Defendants. PLAINTIFFS'/COUNTERCLAIM DEFENDANTS' PRELIMINARY OBJECTIONS TO DEFENDANT'S AMENDED COUNTERCLAIM AND NOW, come Plaintiffs, Hoffman Mechanical, Inc. and Creative Distribution, Inc. (hereinafter collectively "Plaintiffs"), and Counterclaim Defendants, Emily Hoffman, Hoffman Mechanical, Inc. and Creative Distribution, Inc. (hereinafter collectively "Counterclaim Defendants"), by and through their counsel, Serratelli, Schiff fnan, Brown & Calhoon, P. C., and file their Preliminary Objections to Defendant's Amended Counterclaim, and in support thereof aver as follows: PRELIMINARY OBJECTION TO COUNT I OF DEFENDANT'S AMENDED COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R Civ. P. 1028(a)(2) In Count I of Defendant's Amended Counterclaim, Defendant asserts a claim for Intentional Infliction of Emotional Distress ("IIED") against Emily Hoffman, Individually. 2. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 3. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 4. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 5. Count I of Defendant's Amended Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count I of Defendant's Amended Counterclaim, dismiss Count I of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 2 PRELIMINARY OBJECTION TO COUNT I OF DEFENDANT'S AMENDED COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 6. The averments set forth in paragraphs 1 through 5 are incorporated herein by reference as if more fully set forth at length. 7. In Count I of Defendant's Amended Counterclaim, Defendant asserts a claim for IIED against Emily Hoffman, Individually. For the reasons set forth in paragraphs 1 through 5, Emily Hoffman is not a party to this action. 9. Assuming arguendo, that Emily Hoffman is a properly named party in this action, (which Counterclaim Defendants do not concede), in order for Defendant to prevail on his claim for IIED, Defendant must show that Ms. Hoffman's actions were intentional, outrageous and that medically documented physical symptoms were produced on account of the emotional distress. Wiltz v. Pazzalia, 2004 WL 3422031 (Pa. Com. Pl.) 10. A review of Defendant's counterclaim reveals that it is void of any reference to Defendant's medically documented physical symptoms that were produced on account of the alleged emotional distress. 11. Assuming for purposes of this demurrer that the facts alleged by Defendant are true', Defendant has averred that Emily Hoffman directed her conduct at the real and personal property of Defendant. The appropriation of land or personalty of another does not involve conduct directed toward a third person, nor does it raise to level of outrageous conduct that is required for relief under Restatement (Second) of Torts §46. Wiltz, supra. A point which Plaintiffs/Counterclaim Defendants do not concede. 12. Defendant has included in Count I of his amended counterclaim a claim for punitive damages. 13. Defendant has failed to plead any facts upon which his claim for punitive damages is based. Instead, Defendant has simply made boilerplate allegations that Emily Hoffman's alleged conduct was "outrageous". 14. Pennsylvania law is clear that simply averring "outrageous conduct" or "reckless indifference to the interests of others" amounts to pleading conclusions not facts. Hough v. Mever, 2002 WL 1764126 (Pa. Com. PI.). 15. The facts before the court in Count I of Defendant's amended counterclaim present no basis for relief in favor of Defendant. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count I of Defendant's Amended Counterclaim, dismiss Count I of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT II OF DEFENDANT'S AMENDED COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 16. The averments set forth in paragraphs 1 through 15 are incorporated herein as if more fully set forth at length. 17. In Count II of Defendant's Amended Counterclaim, Defendant asserts a claim for Invasion of Privacy against Emily Hoffman, Individually. 4 18. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 19. Emily Hoffinan is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 20. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 21. Count II of Defendant's Amended Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count II of Defendant's Amended Counterclaim, dismiss Count II of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT II OF DEFENDANT'S AMENDED COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R Civ. P. 1028(a)(4) 22. The averments set forth in paragraphs 1 through 21 are incorporated herein as if more fully set forth at length. 23. In Count II of Defendant's Amended Counterclaim, Defendant asserts a claim for "invasion of privacy" against Emily Hoffman, Individually. 24. For the reasons set forth in paragraphs 17 through 21, Emily Hoffman, Individually is not a parry to this action. 25. Assuming arguendo, that Emily Hoffman is a properly named party in this action (which Counterclaim Defendants do not concede), in order to prevail on his claim for invasion of privacy Defendant must plead the required elements. Specifically, Defendant must plead publicity given to private facts, which would be highly offensive to a reasonable person, and which are not of legitimate concern to the public. 26. A review of Count II of Defendant's Counterclaim reveals that it is void of any reference to the publicity of private facts. 27. A review of Count II of Defendant's Amended Counterclaim reveals that it is void of any reference to the publicity of public facts which are highly offensive to a reasonable person. 28. A review of Count II of Defendant's Amended Counterclaim reveals that it is void of any reference to the publicity of facts which are not of legitimate concern to the public. 29. Absent the required elements necessary to sustain a cause of action for invasion of privacy, Count II of Defendant's Amended Counterclaim is legally insufficient and must be dismissed. 30. Defendant has included in Count II of his amended counterclaim a claim for punitive damages. 31. Defendant has failed to plead any facts upon which his claim for punitive damages is based. Instead, Defendant has simply made boilerplate allegations that Emily Hoffman's alleged conduct was "outrageous". 32. Pennsylvania law is clear that simply averring "outrageous conduct" or "reckless indifference to the interests of others" amounts to pleading conclusions not facts. Hough v. Mever, 2002 WL 1764126 (Pa. Com. Pl.). 33. The facts before the court in Count II of Defendant's amended counterclaim present no basis for relief in favor of Defendant. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count II of Defendant's Amended Counterclaim, dismiss Count II of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT III OF DEFENDANT'S AMENDED COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 34. The averments set forth in paragraphs 1 through 33 are incorporated herein as if more fully set forth at length. 35. In Count III of Defendant's Amended Counterclaim, Defendant asserts a claim for Wrongful Use of Civil Proceedings against Emily Hoffman, Individually. 36. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 37. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 38. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 39. Count III of Defendant's Amended Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count III of Defendant's Amended Counterclaim, dismiss Count III of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT III OF DEFENDANT'S AMENDED COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 40. The averments set forth in paragraphs 1 through 39 are incorporated herein as if more fully set forth at length. 41. In Count III of Defendant's Amended Counterclaim, Defendant asserts a claim for Wrongful Use of Civil Proceedings. 42. A review of Count III of Defendant's Amended Counterclaim reveals that it is based solely on the fact that Plaintiffs challenged Defendant's claim for unemployment compensation benefits. 43. An unemployment compensation case is not a lawsuit between employer and employee, but is a claim by unemployed person against the unemployment compensation fund. Ault v. Unemplovment Bd. Of Review, 188 Pa. Super. 260, 146 a.2d 729, reversed on other grounds, 398 Pa. 250, 157 A.2d 375. 44. Pursuant to the Pennsylvania Unemployment Compensation Law, Plaintiffs had the right to challenge the determination that Defendant was eligible for unemployment compensation benefits due to Defendant's willful misconduct and due to the fact that Defendant materially breached the terms of his employment contract with Plaintiff. See 43 P.S. §821(e). See also, Morrison v. Dept. of Corrections, 659 A.2d 620 (Pa. Cmwlth. 1995). 45. In light of Defendant's willful misconduct and Defendant's material breach of the terms of his employment contract with Plaintiff, there was a legitimate legal dispute. 46. Pennsylvania law is clear that there is no action for wrongful use of civil proceeding when the proceeding is used for the purpose for which it is intended. 47. Defendant has included in Count III of his amended counterclaim a claim for punitive damages. 48. Defendant has failed to plead gay facts upon which his claim for punitive damages is based. 49. The facts before the court in Count III of Defendant's amended counterclaim present no basis for relief in favor of Defendant. 50. Count III of Defendant's amended counterclaim is legally insufficient and should be dismissed with prejudice. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count III of Defendant's Amended Counterclaim, dismiss Count III of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT IV OF DEFENDANT'S AMENDED COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 51. The averments set forth in paragraphs 1 through 50 are incorporated herein as if more fully set forth at length. 52. In Count IV of Defendant's Amended Counterclaim, Defendant asserts a claim for fraud against Emily Hoffman, Individually. 53. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 54. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 55. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 56. Count IV of Defendant's Amended Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count IV of Defendant's Amended Counterclaim, dismiss Count IV of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT IV OF DEFENDANT'S AMENDED COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 57. The averments set forth in paragraphs 1 through 56 are incorporated herein as if more fully set forth at length. 10 58. In Count IV of Defendant's Amended Counterclaim, Defendant asserts a claim for fraud. 59. In order to maintain an action for fraud, Defendant must allege the following elements: (a) a representation; (b) which is material to the transaction at hand; (c) made falsely, with the knowledge of its falsity or recklessness as to whether it is true or false; (d) with the intent of misleading another into relying on it; (e) justifiable reliance on the misrepresentation; and (f) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 729 A.2d 555 (Pa. 1999). 60. A review of Defendant's employment contract and non-compete agreement which are attached to Plaintiffs' Amended Complaint as Exhibit "A" and Exhibit "B" reveals that there was absolutely no representation made by Plaintiffs that "Defendant would have secure and lucrative employment for the foreseeable future; and that Hoffman and/or plaintiffs would provide sufficient support to allow Defendant to successfully perform the duties of his employment," as averred by Defendant. 61. A review of the non-compete agreement attached to Plaintiffs' Amended Complaint as Exhibit "B" reveals that it includes an integration clause which states in relevant part "This Agreement represents the entire agreement between Employee and HMI/CDI with respect to the subject matter hereof, superseding all previous oral or written communications, representations, undertakings or agreements relating to this subject." 62. By executing his employment contract and non-compete agreement, Defendant expressly stated that he did not rely on upon any representations that were not set forth in the 11 written contracts of employment. Such a disclaimer negates Defendant's allegation of reliance in Count IV of Defendant's amended counterclaim. 63. The parol evidence rule bars the admission of any alleged representations made by the Counterclaim Defendants to vary, modify, or supersede the written contracts of employment. 64. Count IV of Defendant's Amended Counterclaim fails to state a cause of action for fraud against the Counterclaim Defendants upon which relief may be granted. 65. Defendant has included in Count IV of his amended counterclaim a claim for punitive damages. 66. Defendant has failed to plead any facts upon which his claim for punitive damages is based. 67. The facts before the court in Count IV of Defendant's amended counterclaim present no basis for relief in favor of Defendant. 68. Count IV of Defendant's amended counterclaim is legally insufficient and should be dismissed with prejudice. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count IV of Defendant's Amended Counterclaim, dismiss Count IV of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 12 PRELIMINARY OBJECTION TO COUNT V OF DEFENDANT'S AMENDED COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R. Civ. P. 1028(a)(2) 69. The averments set forth in paragraphs 1 through 68 are incorporated herein as if more fully set forth at length. 70. In Count V of Defendant's Amended Counterclaim, Defendant asserts a claim for violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") against Emily Hoffman, Individually. 71. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 72. Emily Hoffman is the President of Hoffinan Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 73. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 74. Count V of Defendant's Amended Counterclaim fails to conform to rule of court. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection in the nature of to Count V of Defendant's Amended Counterclaim, dismiss Count V of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 13 PRELIMINARY OBJECTION TO COUNT V OF DEFENDANT'S AMENDED COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(a)(4) 75. The averments set forth in paragraphs 1 through 74 are incorporated herein as if more fully set forth at length. 76. In Count V of Defendant's Amended Counterclaim, Defendant asserts a claim for violation of the WPCL against the Plaintiff Corporations and against Emily Hoffman, Individually. 77. Assuming arguendo, that Emily Hoffman is a properly named party to this action (which, for the reasons set forth in paragraphs 53-57 Counterclaim, Defendants do not concede), Defendant has failed to properly plead a cause of action against Emily Hoffman, Individually under the WPCL. 78. An individual is not an employer and is not personally liable under the WPCL simply because they are a shareholder, officer, or director of a corporation. 79. Rather, in order for such individual to deemed an employer and be subject to personally liability under the WPCL, there must be some indication that such individual exercised an active role in the policy-making and decision-making for the corporation. Mahonev v. McClure, 390 Pa. Super. 338, 568 A.2d 682 (1990). 80. Defendant's Counterclaim is wholly devoid of any allegations regarding what, if any, role the individual counterclaim defendant had in the policy-making and decision-making for the Plaintiff Corporations. 81. Count V of Defendant's Amended Counterclaim fails to state a cause of action for violation of the WPCL against the individual counterclaim defendant upon which relief may be granted. 14 WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurer to Count V of Defendant's Amended Counterclaim, dismiss Count V of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. 82. The averments set forth in paragraphs 1 through 81 are incorporated herein as if more fully set forth at length. 83. In Count VI of Defendant's Amended Counterclaim, Defendant asserts a claim for wrongful termination against Emily Hoffman, Individually. 84. Pa. R. Civ. P. 1031 provides that "the defendant may set forth in the answer under the heading "counterclaim" any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing of the answer." (Emphasis added). 85. Emily Hoffman is the President of Hoffman Mechanical, Inc. and Creative Distribution, Inc. She was not and is not "the plaintiff at the time of filing of the answer". 86. The Plaintiffs "at the time of filing of the answer" in this matter are two Pennsylvania business corporations. As a matter of law, an individual cannot do business as a corporation. 87. Count VI of Defendant's Amended Counterclaim fails to conform to rule of court. 15 WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their preliminary objection to Count VI of Defendant's Amended Counterclaim, dismiss Count VI of the Defendant's Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT VI OF DEFENDANT'S COUNTERCLAIM- LEGAL INSUFFICIENCY IN PLEADING (DEMURRER) Pa. R. Civ. P. 1028(x)(4) 88. The averments set forth in paragraphs 1 through 87 are incorporated herein as if more fully set forth at length. 89. In Count VI of Defendant's Amended Counterclaim, Defendant asserts a claim for wrongful termination. 90. Defendant contends that his termination on June 5, 2004 was the alleged result of his request to review his personnel file. 91. Defendant was not denied the opportunity to review his employment file. 92. A review of the notice of termination issued by Plaintiffs to Defendant belies Defendant's contention that his termination resulted from his request to review his personnel file. 93. Defendant has failed to plead any facts which would support his allegation that his termination was the result of his request to view his personnel file. 94. Defendant has failed to offer any medical evidence that would support his claim that his termination of employment caused him to "experience and suffer severe emotional distress". 16 95. Defendant has failed to offer any evidence which would support his contention that his termination of employment resulted in "the loss to Defendant of the ability to work in his chosen career." 96. Defendant has requested punitive damages in his claim for wrongful termination. 97. Count VI of Defendant's Amended Counterclaim is wholly devoid of any allegation which would support a claim for punitive damages. WHEREFORE, Plaintiffs/Counterclaim Defendants respectfully request that this Honorable Court sustain their demurrer to Count VI of Defendant's Amended Counterclaim, dismiss Count VI of the Amended Counterclaim with prejudice, and further award Plaintiffs/Counterclaim Defendants with all such other relief as is proper and just. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Appellant Date: July 17, 2006 17 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date: / B U 21 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: (l h, 61 22 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Date: -1111,410-6 E y offmati , Individ 23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Counterclaim Defendants' Preliminary Objections to Defendant's Amended Counterclaim has been served upon all parties of interest by placing the same in the United States Mail, first-class, postage pre-paid, at Harrisburg, Pennsylvania on this 17a' day of July, 2006, and addressed as follows: Keith E. Kendall, Esquire 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112 Paige Macdonald-Matthes, Esquire 18 .? '??. T' {i CJ ?-=i? ,_._ ;l7 -4 HOFFMAN MECHANICAL, INC. IN THE COURT OF COMMON and CREATIVE DIS BUTION, PLEAS FOR CUMBERLAND INC., COUNTY, PENNSYLVANIA VS. DOUGLAS L. DEIMR, No. 2804-2494 P _ Defeo t 6pl ,S. HOFFMAN MEC ICAL, INC.; CREATIVE DISTRIB TION, INC.; AND EMILY HOFFMAN Defen to NOW COME~ S Defendant and Counterclaim Plaintiff Douglas L. Deimler ("Defendant"), by an through his attorney, to respond to the Preliminary Objections of Plaintiff and terclaim Defendants Hoffman Mechanical, Inc., Creative Distribution, Inc. an Emily Hoffman ("Plaintiffs") by evenly-numbered paragraphs, as follows: 1. Denied I In Count I of Defendant's Amended Counterclaims, Defendant asserts a claim of IIE against all named Counterclaim Defendants, including Emily Hoffman as the fra dulent alter-ego of the named sham corporations Hoffman Mechanical, Inc. anck restive Distribution Inc. 2. Admitte?3. 3. Denied, The named Plaintiffs - Hoffman Mechanical, Inc. and Creative Distribution, Inc. - are sham corporations - alter egos of Emily Hoffman - organized and existing to conceal and protect principal owner Hoffman from accountability for her individually illego and wrongful acts; to perpetuate fraud and/or to avoid existing obligations, as set f64 at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint. 4. Objection. The allegation states a conclusion of law to which no response is required. I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, s e is/are denied. Denied that an individual cannot do business as a sham corporatio . On the contrary, (1) the named Plaintiff corporations are a sham, as set forth atl Paragraphs 6 - 8 of the New Matter to Defendant's Answer, Amended New Matter and Amended Counterclaims; (2) a single person can ostensibly - albeit in (this case fraudulently -incorporate and become a corporation; and (3) pursuant to Pennsylvania's "Rules of Construction," 1 Pa.C.S. §1991, the term "Person" "(I)ncludes I a corporation (emphasis added), partnership, limited liability company, business rust, other association, government entity (other than the Commonwealth), esta?e, trust, foundation or natural person." 5. Denied I Count I of Defendant's Counterclaim conforms to the Pa. R. Civ. P. 2229 regarding joinder of parties, in that Defendant's counterclaims arose out of the same transaction, occurrence, or series of transactions or occurrences as 2 Plaintiffs' initial corn faint. In addition, there are numerous common questions of law and fact that will affect the liabilities of all persons in the current action. dismiss Plaintiffs' 6. No Paragraphs 1 - 5. the Defendant respectfully requests that this Honorable Court objection to Count I of Defendant's Counterclaim. required, in that Defendant has hereinbefore responded to 7. Denied In Count I of Defendant's Amended Counterclaims, Defendant asserts a claim of II D against all named Counterclaim Defendants, including Emily Hoffman as the Mechanical, Inc. and New Matter to Counterclaims. 8. Denied. Defendant's New party to this action. 9. alter-ego of the named sham corporations Hoffman Distribution Inc, as set forth at Paragraphs 6 - 8 of the Answer, Amended New Matter and Amended As averred hereinbefore; in Defendant's Counterclaims and in to Plaintiffs` claims, Emily Hoffman is a properly joined The allegation states a conclusion of law to which no response is required. I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, and/or omissions of is/are denied. The evidence will clearly show that the acts Hoffman were so intentionally outrageous as to render 3 Defendant's IIED claim as legally sufficient. Further, Plaintiffs have misconstrued the law of this Commonwealth relating to claims of IIED, in that "documentation" of ( physical injury is not required - the presence of physical injury is a matter of degree, and pertains to thel amount of damages to which Defendant will be entitled. Defendant has therefore sufficiently alleged physical harm as to survive Plaintiffs' objection, in that Defendant has alleged, at Paragraph 26 of his Amended Counterclaim, that because of Defendants' intentional and malicious acts/omissions to act, he has "consequently suffered from depression, anxiety, loss of sleep and loss of enjoyment of life"I - an allegation similar to that found sufficient by our Superior Court to state a claim for IIED: "headaches, upset stomach, involuntary muscle tension, physical pair and nervousness," Johnson v. Canarelli, 425 Pa.Super. 404, at 412-413; 625 A.2d 668, at 672 (1993). Finally, the fact that Plaintiffs were convicted of a crime involving their intentional invasion of Defendant's home, personal privacy and personal computer more than evidence outrageous conduct sufficient to support this claim at this stage of these proceedings. 10. Denied See Paragraph 26 of Defendant's Amended Counterclaim and Defendant's response to Paragraph 9 hereinbefore - incorporated herein. 11. Objectio . The allegation is a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. The WiltZ case - inappropriately cited in Plaintiffs' objections - is so distinguishable on its facts as to be wholly inapplicable to this action. 4 Further, the case i a decision rendered by the Court of Common Pleas of Lackawanna County which is not - and should not be construed as binding on this Court. 12. Admitted. 13. Objection. The allegation is a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are (denied. Defendant has pleaded sufficiently outrageous acts/omissions by Plaintiffs in his Answer, New Matter and Counterclaims - allegations which mu t be taken as true in the context of preliminary objections in the nature of demurrer - o as to establish his claim for punitive damages. 14. Objection. The allegation is a conclusion of law to which no response is required. To the extot the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. In Pennsylvania, the "function of punitive damages is to deter and punish egregious behavior." G J.D. v. Johnson, 552 Pa. 169, 172 (Pa. 1998). Punitive damages in# be imposed for "torts that are committed willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured." Id at 172, citing, IhQn-i4)son 317 Pa. 158, 159, 176 A. 211, 212 (1934). Defendant's allegations are equal to a case in which "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclairn,l "Outrageousl" Restatement (Second) of Torts, §46, and are 5 therefore sufficient to survive Plaintiffs' demurrer - particularly at this stage of these proceedings. 15. Objection. The allegation is a conclusion of law to which no response is required. To the extont the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are deni4 as set forth at Paragraphs 13 and 14 hereinbefore. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count I of Defendant's Counterclaim. 16. No response required, in that Defendant has hereinbefore responded to Paragraphs 1 -15. 17. Denied.) In Count II of Defendant's Amended Counterclaims, Defendant asserts a claim of "invasion of privacy" against all named Counterclaim Defendants, including Emily Hoffman as the fraudulent alter-ego of the named sham corporations Hoffman Mechanical, Inc. and Creative Distribution Inc, as set forth at Paragraphs 6 - 8 of the New Matter to Defendant's Answer, Amended New Matter and Amended 18. 19. Denied.) The named Plaintiffs - Hoffman Mechanical, Inc. and Creative Distribution, Inc., are sham corporations - alter egos of Emily Hoffman, organized 6 and existing to conceal and protect principal owner Hoffman from accountability for her individually illeg4 and wrongful acts; to perpetuate fraud and/or to avoid existing obligations, as set forth at Paragraph 6 of Defendant's New Matter to Plaintiffs' Complaint. 20. Objection. The allegation states a conclusion of law to which no response is required.) To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied Denied that an individual cannot do business as a sham corporatioln. On the contrary, (1) the named Plaintiff corporations are a sham, as set forth at Paragraphs 6 - S of the New Matter to Defendant's Answer, Amended New Mauer and Amended Counterclaims; (2) a single person can ostensibly - albeit in I this case fraudulently -incorporate and become a corporation; and (3) pursuant to P' nnsylvania's "Rules of Construction," 1 Pa.C.S. §1991, the tern "Person" "[I]ncludes) a coipomdon (emphasis added), partnership, limited liability company, business (trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person." 21. Denied I Count II of Defendant's Counterclaim conforms to the Pa. R. Civ. P. 2229 regarding joinder of parties, in that Defendant's counterclaims arose out of the same transac' ion, occurrence, or series of transactions or occurrences as Plaintiffs' initial complaint. In addition, there are numerous common questions of law and fact that will affe?t the liabilities of all persons in the current action. 7 dismiss Plaintiffs' 22. No resp Paragraphs 1 - 21. 23. Denied. asserts a claim of "ir including Emily Hoff Hoffman Mechanical - 8 of the New Matti Counterclaims. 24. Denied. Defendant's New M party to this action. 25. Obiecti( the Defendant respectfully requests that this Honorable Court objection to Count II of Defendant's Counterclaim. required, in that Defendant has hereinbefore responded to Count II of Defendant's Amended Counterclaims, Defendant of privacy" against all named Counterclaim Defendants, as the fraudulent alter-ego of the named sham corporations Inc. and Creative Distribution Inc., as set forth at Paragraphs 6 to Defendant's Answer, Amended New Matter and Amended As averred hereinbefore; in Defendant's Counterclaims and in to Plaintiffs' claims, Emily Hoffman is a properly joined The allegation states a conclusion of law to which no response is required.) To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied Furthermore, Plaintiff has cited an incorrect legal standard Defendant's claim refers to the tort of "invasion of privacy - intrusion upon seclusion." T¢ establish this claim, Defendant must show that Plaintiff intentionally "physically or otherwise, upon the solitude or seclusion of 8 [Defendant], or his private affairs or concerns," and that the "intrusion would be highly offensive to a reasonable man." Vogel v. W. T. Grant Co., 458 Pa. 124,130 (Pa. 1974). The evidence will show that Defendant has pleaded the required elements for "invasion of vrivacv." 26. Objection. The allegation states a conclusion of law to which no response is required.) To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, ?ame is/are denied. Furthermore, as set forth in paragraph 25, Plaintiff has cited an )incorrect legal standard for "invasion of privacy." Defendant is not required to prove) publicity of private facts. 27. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, ?ame is/are denied. Furthermore, as set forth in paragraph 25, Plaintiff has cited an incorrect legal standard Defendant is not required to show publicity of private facts which are highly offensive to a reasonable person in a claim for "invasion of privacv." 28. Objection. The allegation states a conclusion of law to which no response is required.I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, Plaintiff has cited publicity of private is/are denied Furthermore, as set forth in paragraph 25, incorrect legal standard. Defendant is not required to show which are not a legitimate concern to the public. 9 29. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, flame is/are denied The evidence will show that Defendant has pleaded sufficient f?cts to establish a claim of "invasion of privacy." Further, Defendants have been convicted of a crime tantamount to invasion of privacy, as set forth at Paragraph 17, and Exhibit A referenced therein, of Defendant's Answer, Amended New Matter and Amended Counterclaims. 30. 31. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, flame is/are denied The evidence will clearly show that the acts and/or omissions of Emily Hoffman were so intentionally outrageous as to render Defendant's "invasion of privacy" claim as legally sufficient. Furthermore, the fact that Plaintiffs were (convicted of a crime involving their intentional invasion of Defendant's home, personal privacy and personal computer, as set forth at Paragraph 17, and Exhibit A referenced therein, of Defendant's Answer, Amended New Matter and Amended Counterclaims, more than evidence outrageous conduct sufficient to support this claim at this stage of these proceedings. 32. Objection. The allegation is a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Furthermore, in Pennsylvania, the "function of punitive 10 damages is to deter and punish egregious behavior." G.J.D. v. Johnson. 552 Pa. 169, 172 (Pa. 1998). Pu?itive damages may be imposed for "torts that are committed willfully, maliciously, for so carelessly as to indicate wanton disregard of the rights of the party injured." Id at 172, citing, Thompson v. Swank 317 Pa. 158, 159, 176 A. 211, 212 (1934). Defendant's allegations are equal to a case in which "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Restatement (Second) of Torts, §46, and are therefore sufficient to survive Plaintiffs' demurrer - particularly at this stage of these proceedings. 33. Objection. The allegation is a conclusion of law to which no response is required. To the extot the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied, as set forth at Paragraphs 31 and 32 hereinbefore. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count II of Defendant's Counterclaim. 34. No response required, in that Defendant has hereinbefore responded to Paragraphs 1- 33. 35. Denied) In Count III of Defendant's Amended Counterclaims, Defendant asserts a ?laim of Wrongful Use of Civil Proceedings against all named Counterclaim Defencants, including Emily Hoffman as the fraudulent alter-ego of the II named sham corporations Hoffman Mechanical, Inc. and Creative Distribution Inc., as more fully set forth at Paragraphs 6 - 8 of the New Matter to Defendant's Answer, Amended New Matter and Amended Counterclaims. 36. 37. Denied] The named Plaintiffs - Hoffman Mechanical, Inc. and Creative Distribution, Inc. - a* sham corporations - alter egos of Emily Hoffman - organized and existing to conceal and protect principal owner Hoffman from accountability for her individually illeg4 and wrongful acts; to perpetuate fraud and/or to avoid existing obligations, as set forth at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint. 38. Objection. The allegation states a conclusion of law to which no response is required.) To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Denied that an individual cannot do business as a sham corporation. On the contrary, (1) the named Plaintiff corporations are a sham, as more fully Oeged at Paragraphs 6 - 8 of the New Matter to Defendant's Answer, Amended New Matter and Amended Counterclaims.; (2) a single person can ostensibly - albeit in this case fraudulently - incorporate and become a corporation; and (3) pursuant to Pennsylvania's "Rules of Construction," 1 Pa.C.S. §1991, the term "Person" "[IJndudesl a corporation (emphasis added), partnership, limited liability company, business ]trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person." 12 39. Denied. Count III of Defendant's Counterclaim conforms to the Pa. R. Civ. P. 2229 regarding joinder of parties, in that Defendant's counterclaims arose out of the same transaction, occurrence, or series of transactions or occurrences as Plaintiffs' initial cornllaint. In addition, there are numerous common questions of law and fact that will aff4i the liabilities of all persons in the current action. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count III of Defendant's Counterclaim. 40. No resplonse required, in that Defendant has hereinbefore responded to Paragraphs 1 - 39. 41. 42. Denied I In Paragraphs 32 through 38 of Defendant's Counterclaim, Defendant has sufficiently pleaded facts demonstrating a claim under the Dragonetti Act, 42 Pa.C.S. Q8J51(a). To the extent the Court deems Defendant's factual allegations to be inadequate, Plaintiff requests leave to amend 43. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, dame is/are denied. In Paragraphs 32 through 38 of Defendant's Counterclaim, Defendant has sufficiently pleaded facts demonstrating a claim under 13 the Dragonetti Act, 4? Pa.C.S. §8351(a). To the extent the Court deems Defendant's factual allegations to be inadequate, Plaintiff requests leave to amend 44. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, ?ame is/are denied. Furthermore, as Defendant set forth in his Counterclaim, at Paragraphs 28 through 30, Plaintiff did not challenge Defendant's eligibility for unemployment benefits because of alleged misconduct, but rather, Plaintiff challenged Defendant's eligibility "for the sole purpose of retaliating against Defendant for the imagined and alleged acts that have given rise to the meritless claims set forth in Plaintiffs' complaint" 45. Objection. The allegation states a conclusion of law to which no response is required.I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, ?ame is/are denied. Plaintiffs claim that Defendant committed "willful misconduct`s is a misrepresentation, in that Defendant's claim for unemployment compensation benefits was granted by the Unemployment Compensation Board) of Review on the very ground that Defendant did not commit willful misconduct - and that finding is now res judicata as to these proceedings. 46. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, Jame is/are denied. Furthermore, there is a legitimate cause of action for wrongful ?se of civil proceedings against Plaintiffs, as they challenged 14 and are therefore suf dent to survive Plaintiffs' demurrer - particularly at this stage of these proceedings. 50. Objection. The allegation is a conclusion of law to which no response is required. To the extent deemed by the Court to be an allegation of act, same is denied, as set forth atlParagraphs 48 and 49 hereinbefore. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count III of Defendant's Counterclaim. 51. No resp?nse required, in that Defendant has hereinbefore responded to Paragraphs 1 - 50. 52. Denied.) In Count IV of Defendant's Amended Counterclaims, Defendant asserts a (claim of fraud against all named Counterclaim Defendants, including Emily Hoffman as the fraudulent alter-ego of the named sham corporations Hoffman Mechanical,) Inc. and Creative Distribution Inc. 53. 54. Denied. The named Plaintiffs - Hoffman Mechanical, Inc. and Creative Distribution, Inc. - an: sham corporations - alter egos of Emily Hoffman - organized and existing to her individually illegal and protect principal owner Hoffman from accountability for and wrongful acts; to perpetuate fraud and/or to avoid existing 16 obligations, as more 10y set forth at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint. 55. Objectign. The allegation states a conclusion of law to which no response is required. I, To the extent the allegation is deemed to be or contain (an) I allegation(s) of fact, none is/are denied Denied that an individual cannot do business as a sham corporation. On the contrary, (1) the named Plaintiff corporations are a sham, set more Uly set forth at Paragraphs 6 - 8 of the New Matter to Defendant's Answer, Amended New Matter and Amended Counterclaims; (2) a single person can ostensibly - albeit in (this case fraudulently -incorporate and become a corporation; and (3) pursuant to Pennsylvania's "Rules of Construction," 1 Pa.C.S. §1991, the term "Person" "[I]ncludes I a corporation (emphasis added), partnership, limited liability company, business `rust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person." 56. Denied. I Count IV of Defendant's Counterclaim conforms to the Pa. R. Civ. P. 2229 regardin* joinder of parties, in that Defendant's counterclaims arose out of the same transaction, occurrence, or series of transactions or occurrences as Plaintiffs' initial corn0aint. In addition, there are numerous common questions of law and fact that will affect the liabilities of all persons in the current action. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count IV of Defendant's Counterclaim. 17 57. No response is required, in that Defendant has hereinbefore responded to Paragraphs 1 - 56. 58. 59. Objection. The allegation states a conclusion of law to which no response is required.I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, s 60. Objectic response is required allegation(s) of fact, contract and non-coi Defendant's counterc representations to Do was justified in relying Defendant's business distress, were proxim: 61. Admittel However, Plaintiffs' c objection. Defendan is/are denied. The allegation states a conclusion of law to which no To the extent the allegation is deemed to be or contain (an) same is/are denied. Furthermore, Defendant's employment agreement are not relevant to the claim. As set forth in paragraphs 33 through 40, Plaintiffs knowingly made false with the intent of acquiring his customers. Defendant on Plaintiffs' representations in selling his business. The loss of his subsequent employment, as well as his severe emotional caused by Plaintiffs' conduct that Exhibit B to Plaintiffs' Amended Complaint so states. is misplaced The cited provision is irrelevant to this counterclaim allegation is that the Agreement was procured 18 by fraud which - when proven - will render the Agreement void ab initio, and its terms would therefore void and unenforceable. 62. Objection. The allegation is a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Moreover, Defendant has misconstrued this Counterclaim, in that when proven, the alleged agreement will be ineffectual and void ab initio. Any "representations" b Plaintiffs in the alleged agreement were in fact "misrepresentations" which - when proven - will render the alleged agreement void ab initio, and its terms would therefore void and unenforceable; and any "disclaimer" by Defendant - based upon a Plaintiffs` misrepresentations in the alleged agreement, would likewise be ineffective and unenforceable. Moreover, one exception to the parol evidence rule is that parol evidence may be introduced to vary a writing meant to be the parties' en* contract where a party avers that a term was omitted from the contract because of ,,, accident, or mistake (emphasis added), HCB Contractors v. 539 Pa. 395, 652 A.2d 1278,1279 (Pa. 1995); Bardwell v. Willis Co., 375 Pa. ?03, 100 A.2d 102,104 (Pa. 1953). 63. Objection. The allegation is a conclusion of law to which no response is required To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Moreover, one exception to the parol evidence rule is that parol evidence may be introduced to vary a writing meant to be the parties' entire contract where a party avers that a term was omitted from the contract because of 19 fraud accident, or stake (emphasis added), HCB Contractors v. L.iberu Place Hotel Associates, 539 Pa. 395, 652 A.2d 1278, 1279 (Pa. 1995); Bardwell v. Willis Co., 375 Pa. 503,100 A.2d 102,104 (Pa. 1953). 64. Objection. The allegation is a conclusion of law to which no response is required To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are delnied. The evidence will clearly show that the acts and/or omissions of Emily "offman - allegations which must be taken as true in the context of preliminary objections in the nature of demurrer - were legally sufficient to support a claim of fraud against Plaintiffs, and the parol evidence nile cannot save Plaintiffs from the damage cawed to Defendant by their fraudulent acts/omissions. 65. 66. Objection. The allegation is a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Defendant has pleaded sufficiently outrageous acts/omissions by Plaintiffs in his Answer, New Matter and Counterclaims - allegations which mu# be taken as true in the context of preliminary objections in the nature of demurrer - Sf as to establish his claim for punitive damages. 67. Objection. The allegation is a conclusion of law to which no response is required To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied, as set forth at Paragraphs 60-64 hereinbefore. Furthermore, in Pennsylvania, the ' fimction of punitive damages is to deter and punish egregious 20 behavior."G.IJohnson, 552 Pa. 169,172 (Pa. 1998). Punitive damages may be imposed for "torts that are committed willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured" Id at 172, citing, Thompson VSwat 317 Pa. 158, 159, 176 A. 211, 212 (1934). Defendant's allegations are equal to a case in which "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Out*ousf" Restatement (Second) of Torts, §46, and are therefore sufficient to surviv? Plaintiffs' demurrer - particularly at this stage of these proceedings. 68. Objection. The allegation is a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied, as set forth at Paragraphs 60 through 67 hereinbefore. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' pre4minary objection to Count IV of Defendant's Counterclaim. 69. No res nse required, in that Defendant has hereinbefore responded to Paragraphs 1- 68. 70. Denied. In Count V of Defendant's Amended Counterclaims, Defendant asserts a claim for violation of the Pennsylvania Wage Payment and Collection Law (CL') against all named Counterclaim Defendants, including 21 Emily Hoffman as the fraudulent alter-ego of the named sham corporations Hoffman Mechanical, Inc. and (Creative Distribution Inc, as set forth at Paragraphs 6 - 8 of the New Matter to Defendant's Answer, Amended New Matter and Amended Counterclaims. 71. AdmittX d. 72. Denied. The named Plaintiffs - Hoffman Mechanical, Inc. and Creative Distribution, Inc. - ar? sham corporations - alter egos of Emily Hoffman - organized and existing to conceal and protect principal owner Hoffinan from accountability for her individually illegal and wrongfiil acts; to perpetuate fraud and/or to avoid existing obligations, as set foo at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint. 73. Objection. The allegation states a conclusion of law to which no response is required. I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, as a sham sham, as set forth Complaint; (2) a incorporate and Construction," 1 added), partnership, is/are denied. Denied that an individual cannot do business On the contrary, (1) the named Plaintiff corporations are a Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' person can ostensibly - albeit in this case fraudulently - a corporation; and (3) pursuant to Pennsylvania's "Rules of .S. §1991, the term "Person" "[I]ncludes a cotporadon (emphasis limited liability company, business trust, other association, 22 government entity (other than the Commonwealth), estate, trust, foundation or natural person." 74. Denied. Count V of Defendant's Counterclaim conforms to the Pa. R. Civ. P. 2229 regarding joinder of parties, in that Defendant's counterclaims arose out of the same transaction, occurrence, or series of transactions or occurrences as Plaintiffs' initial complaint. In addition, there are numerous common questions of law and fact that will affe4t the liabilities of all persons in the current action. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count V of Defendant's Counterclaim. 75. No resp rise required, in that Defendant has hereinbefore responded to Paragraphs 1 - 74. 76. Denied. In Count V of Defendant's Amended Counterclaims, Defendant asserts a aim for violation of the WPCL against all named Counterclaim Defendants, including Emily Hoffman as the fraudulent alter-ego of the named sham corporations Hoffman Mechanical, Inc. and Creative Distribution Inc., as set forth at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint. 77. Objection. The allegation states a conclusion of law to which no response is required. I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, is/are denied The evidence will show that Defendant has 23 properly pleaded a cause of action against Emily Hoffman, individually under the WPCL. 78. Objection. The allegation states a conclusion of law to which no response is required. To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, *ne is/are denied. Furthermore, Defendant does not seek to hold Hoffman liable (merely because she was a shareholder, officer or director of a corporation. Pennsylvania courts have recognized that the corporate veil may be pierced, and individual shareholders may be held liable for their actions when there has been "...substantial intermingling of corporate and personal affairs and use of the corporate form to perpetuate a fraud." Advanced Tel. Sys. v. Com-Net Profl Mobile Radio, LLC, 2004 PAI Super 100, P42 (Pa. Super. Ct. 2004). Defendant has clearly and sufficiently alleged that the sole purpose of Hoffman's "corporations" was to avoid personal liability for hntentional tortious and criminal conduct, and to perpetuate a fraud against 79. Objection. The allegation states a conclusion of law to which no response is required To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Moreover, as more fully alleged at Paragraphs G -8 of alter-ego of the Distribution Inc. New Matter - Emily Hoffman was the fraudulent sham corporations Hoffman Mechanical, Inc. and Creative 24 80. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, 'dame is/are denied The evidence will clearly show numerous activities conducted by Hoffman which evidence her policy making and decision making toles in the "ham corporations." As such, Defendant has clearly alleged that Emily Hoffman was i? fact Hoffman Mechanical, Inc. and Creative Distribution, Inc.; and therefore clearly see Exhibit A to Counterclaim, which corporations. 81. policy for these sham, alter-ego corporations. Moreover, Answer, Amended New Matter and Amended reflects Emily Hoffman pleading guilty on behalf of her sham The allegation states a conclusion of law to which no response is required. I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, ?ame is/are denied The evidence will show that Defendant has properly pled a cau?e of action for which relief may be granted against Emily Hoffman, individually under the "CL. Defendant/Counterclaim Plaintiffs respectfully request that this Honorable Courtldismiss Plaintiff's/Counterclaim Defendant's preliminary objection to Count V of Defendant's Counterclaim. 25 82. No response required, in that Defendant has hereinbefore responded to Paragraphs 1 - 81. 83. Denied) In Count VI of Defendant's Amended Counterclaims, Defendant asserts a claim of wrongful termination against all named Counterclaim Defendants, including Emily Hoffman as the fraudulent alter-ego of the named sham corporations Hoffman Mechanical, Inc. and Creative Distribution Inc. 84. 85. Denied.) The named Plaintiffs - Hoffman Mechanical, Inc. and Creative Distribution, Inc. - are sham corporations - alter egos of Emily Hoffman - organized and existing to conceal and protect principal owner Hoffman from accountability for her individually illegal and wrongful acts; to perpetuate fraud and/or to avoid existing obligations, as set forth at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint 86. Objection. The allegation states a conclusion of law to which no response is required. I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied Denied that an individual cannot do business as a sham corporation. On the contrary, (1) the named Plaintiff corporations are a sham, as more fully Iset forth at Paragraphs 6 - 8 of Defendant's New Matter to Plaintiffs' Complaint (2) a single person can ostensibly - albeit in this case 26 fraudulently -incorporate and become a corporation; and (3) pursuant to Pennsylvania's "Rules of Construction," 1 Pa.C.S. §1991, the term "Person" "[I]ncludes a moomi on (emphasis added), partnership, limited liability company, business trust, other ssociation, government entity (other than the Commonwealth), estate, trust, foundation or natural person." 87. Denied. Count VI of Defendant's Counterclaim conforms to the Pa. R Civ. P. 2229 regarding joinder of parties, in that Defendant's counterclaims arose out of the same transaction, occurrence, or series of transactions or occurrences as Plaintiffs' initial complaint. In addition, there are numerous common questions of law and fact that will affe?t the liabilities of all persons in the current action. the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' preliminary objection to Count VI of Defendant's Counterclaim. 88. No response required, in that Defendant has hereinbefore responded to Paragraphs 1 - 87. 89. Aden 90. Adrr 91. Denied I Defendant requested permission, through counsel, that he be permitted to review 1 personnel file. The request was denied, as alleged. 27 92. Denied. that Defendant did r notice is not unjustifu allegations herein rai! dismissal on prelimin; well aware - the allel purposes of resolving 93. Obiectii A review of the termination notice issued by Plaintiffs reveals sign or acknowledge the notice. Plaintiffs' reliance on this and misplaced Moreover, Plaintiffs' objection to Defendant's material issues of disputed fact which are not amenable to objection by demurrer, in that - as Plaintiffs are or should be in Defendanes counterclaim must be taken as true for Plaintiffs' preliminary objections The allegation states a conclusion of law to which no response is required.I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, ?ame is/are denied Plaintiff has pleaded more than sufficient facts - which must be taken by this Court as true - to state a claim for wrongful termination. 94. Objection. The allegation states a conclusion of law to which no response is required.I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, same is/are denied. Moreover, Plaintiff is not required to plead or demonstrate medical evidence in order to sustain his claim of emotional distress. 95. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact, on the grounds that' claim demonstrates is/are denied Moreover, Plaintiffs' objection to this claim has failed to offer any evidence ..." in support of his Plaintiffs' misunderstanding of the purpose of preliminary 28 objections and - in this case - their misuse. Plaintiff is not required - by the rules of pleading - to demonstrate or "offer" any "evidence" at the pleadings stage. 96. 97. Objection. The allegation states a conclusion of law to which no response is required I To the extent the allegation is deemed to be or contain (an) allegation(s) of fact,) same is/are denied. The evidence will clearly show that Defendant's counterclaim will support a claim for punitive damages. Furthermore, in Pennsylvania, the "function of punitive damages is to deter and punish egregious behavior." G.J.D. v. Johnson 552 Pa. 169, 172 (Pa. 1998). Punitive damages may be imposed for "torts that are committed willfully, maliciously, or so carelessly as to indicate wanton dis?egard of the rights of the party injured" Id at 172, citing, 317 Pa. 158, 159, 176 A. 211, 212 (1934). Defendant's allegations are equal I to a case in which "the recitation of the facts to an average member of the him to exclaim, sufficient to proceedings. would arouse his resentment against the actor, and lead Restatement (Second) of Torts, §46, and are therefore Plaintiffs' demurrer - particularly at this stage of these 11o the Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' Date: objection to Count VI of Defendant's Counterclaim. Keith E. Kendall, Esq. Attorney for Defendant 2415 North Front Street Harrisburg, PA 17110 (717) 236-9539 (717) 236-0483 (FAX) PA Attorney ID No. 42910 30 I, Douglas civil action, verify Answer to Plaintiffs' understand that false §4904, relating to Date: 1`$ the named Defendant and Counterclaim Plaintiff in this the statements made in the foregoing Defendant Douglas Deimlers 06iections to Defendant's Counterclaim are true and correct. I herein are made subject to the penalties of 18 Pa.C.S. falsification to authorities. o er De endant/Counterclaim Plaintiff I, Keith E. Ker that I have this datc Plaintiffs'/Countercla Amended Counterch correct copy of the s, addressed as follows: Date: 0 // 4 CERTIFICATE OF SERVICE Esq., Attorney for the Defendant, Douglas Deimler, certify served a true and correct copy of Defendant's Answer to Defendants' Preliminary Objections to Defendant's upon the Plaintiffs Attorney by depositing a true and in the U.S. Mail, postage pre-paid, return receipt requested, Paige Macdonald-Matthes, Esq. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 oL - Keith E. Kendall, Esq. Attorney for Defendant Ca N O r^ a.=.> ?Y7 -? Y}'` _ 1. . ?_?? ?_ t_.ICJ ??, {`? y C-73`Il 6.) .{ 677 Curtis R. Long Prothonotary office of the Protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor (A - aggq CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573