HomeMy WebLinkAbout10-0428l
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`r T FE T TPA' i
David C. Miller, Jr., Esquire
Supreme Court # 36504
Law Office of David C. Miller, Jr.
1100 Spring Garden Drive, Suite A
Middletown, PA 17057
717-939-9806
717-939-2798 (Fax)
davidcmillerjE@ erizon.net
2010 JANa0 A N 10: 2v
AEROFITNESS SERVICES, INC.
Plaintiff
V.
CLAYTON D. MURRAY,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO.2010 tm1,______ l.: 1011 T-m
: CIVIL ACTION - LAW
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING
IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS
SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE
CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED
AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY
CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED
BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS
IMPORTANT TO YOU. "j.00 P4 A Trr/
ev-* a0q I
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET, CARLISLE, PENNSYLVANIA 17013
TELEPHONE NUMBERS 14004804108 or 1-717-249-3166
David C. Miller, Jr., Esquire
Supreme Court # 36504
Law Office of David C. Miller, Jr.
1100 Spring Garden Drive, Suite A
Middletown, PA 17057
717-939-9806
717-939-2798 (Fax)
davidcmillerrna,verizon.net
AEROMTNESS SERVICES, INC. : IN THE COURT OF COMMON PLEAS OF
plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 2010 CV-
CLAYTON D. MURRAY, : CIVIL ACTION - LAW
Defendant
COMPLAINT
PARTIES
Plaintiff, AeroFitness Services, Inc., is a corporation organized and existing under
the laws of the Commonwealth of Pennsylvania, with a place of business located at 4750 Westport
Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055.
2. Defendant, Clayton D. Murray, is an individual and citizen of the Commonwealth
of Pennsylvania, with an address located at 813 Hummel Avenue, Lemoyne, Cumberland County,
Pennsylvania.
VENUE
3. Venue is proper in this county, as Defendant resides and does business in this
county, and as many of the acts upon which Plaintiffs claim is based took place here.
4. At all relevant times Plaintiff, AeroFitness Services, Inc., has been in the business
of servicing and selling exercise and fitness equipment in Pennsylvania.
5. Beginning on June 21, 2004, and continuing until December 5, 2008, Defendant
Murray was employed by Plaintiff as a warehouse manager and service technician. Defendant
Murray executed a "Combined Agreement Not to Disclose Proprietary or Confidential Information
and Restriction Against Competition" (hereinafter "Agreement") on September 25, 2007, as part
of his continued employment with Plaintiff, a copy of which is attached hereto and marked as
Exhibit "A".
6. Pursuant to job duties, Defendant Murray was responsible for performing service
work for Plaintiff's customers.
7. The Agreement provided in Section 4(a)-(e) that:
4. Agreement Not to Disclose COVVen" Information.
(a) You acknowledge that the following items (collectively referred
to as "confidential information") used in the Company's
business are secret, confidential, unique, and valuable, were
developed by the Company at great cost and over a long period
of time, and that disclosure or use of the Company's confidential
information to or by anyone other than the Company's officers,
agents, or authorized Employees will cause the Company
irreparable injury. The Company's confidential information
includes:
(i) Client lists, prospect call lists, and other customer data;
(ii) Price lists, vendor lists, computer printouts, accounts
receivable reports, revenue reports and similar financial
information;
2
(w) Proposals, contracts, leases, rental agreements, and
marketing information;
(iv) Employee lists; and
(v) Such other Company information designated as
confidential, propriety, and/or trade secret to which you
gain access during your employment.
(b) Except as required in the performance of your duties as an Employee
of the Company, you agree not to disclose to anyone the Company's
confidential information, whether such information is developed
before or after the date of this Agreement.
(c) The restrictions against disclosure contained in this Agreement apply
during and after your employment with the Company.
(d) The restrictions against disclosure contained in this Agreement also
apply to confidential information developed by you while employed
by the Company.
(e) Upon termination of your employment for any reason, you will
promptly deliver to the Company all tangible objects containing
confidential information, including all copies thereof, whether
prepared by you or others, that you possess or have under your
control.
8. During the term of his employment with Plaintiff, Defendant Murray had access to
Plaintiff s confidential information as described above.
9. All of the information and items set forth above were, and were known by
Defendant Murray to be competitively sensitive information which Plaintiff treated, and
Defendant Murray knew or should have known that as an individual in a position of confidence
and trust with Plaintiff, he was to treat, as confidential, proprietary information inasmuch as the
disclosure of such information and items would operate to the detriment of Plaintiff and to the
commercial advantage of Plaintiff's competitors.
10. During the term of Defendant Murray's employment with Plaintiff, Defendant
Murray was Plaintiff's representative in dealing with various of Plaintiff's customers, including
but not limited to the customers located in Central Pennsylvania, as well as Plaintiffs potential
customers located in Central Pennsylvania.
11. In connection with these customers and potential customers, the Agreement
provided in Section 5(a) that:
5. Restriction Against Competition
(a) You agree that throughout the term of your employment with the
Company and for a period of two (2) years thereafter, you will not,
directly or indirectly, individually or in conjunction with any other
person, or as an employee, agent, representative, partner, or holder of
any interest in any other person, firm, corporation, or other
association:
(i) Solicit, entice, induce any person, firm, or corporation, who or
which at any time during your employment with the Company
was a client or customer of the Company, to become a client or
customer of any other person, firm, or corporation, or other
association;
4
(ii) Authorize or direct any person, firm, or corporation to solicit,
entice or induce any person, firm or corporation, who or which
at any time during your employment with the Company was a
client or customer of the Company, to become a client or
customer of any other person, firm or corporation, or other
association;
(iii) Solicit, entice, or induce any person who presently is or at any
time during your employment with the Company will be, an
Employee of the Company, to become employed by any other
person, firm, corporation, or other association, and you shall
not approach any such Employee for such purpose or
authorize or direct the taking of such actions by any other
person;
(iv) Directly or indirectly solicit, participate in, or accept business
similar to any aspect of the Company's business from any
person, firm, or other association, who or which was a client or
customer or prospect of the Company during your
employment with the Company and with whom you had
business contact while employed by the Company. "Business
Contact" for these purposes shall include your Internet,
computer, telephonic, written and/or face to face business
communication with representatives of the customer or
prospect.
5
Nothing in the foregoing shall prohibit you, after termination of your
employment with the Company from engaging in any business that is not in
competition with the Company. At no time during or after your employment
by the Company shall you be prohibited from investing in the securities of
any corporation having securities listed on a national security exchange,
provided that such investment does not exceed five percent of any class of
securities of any corporation engaged in business in competition with the
Company, and provided that such ownership represents a passive investment
and that neither you nor any group of persons including you, in any way,
either directly or indirectly, manages or exercises control over any such
corporation, guarantees any of its financial obligations, or otherwise takes
part in its business, except in the exercise of your rights as a shareholder.
12. On or about December 5, 2008, Defendant Murray voluntarily left Plaintiff's
employ.
13. At or after the time Defendant Murray left Plaintiffs employ, he accepted
employment with one of Plaintiff's customers, without the express or implied consent or
permission of Plaintiff, and in direct contravention of the explicit terms of Defendant's
Agreement.
14. Upon information and belief, Defendant Murray has used, and will continue to use,
information and knowledge he gained from his employment with Plaintiff to his commercial and
competitive advantage and to the commercial and competitive detriment of Plaintiff.
6
15. In or around January, 2009, it is believed and therefore averred that Defendant
Murray approached one or more of Plaintiff's customers, in particular Planet Fitness, for the
purpose of inducing Planet Fitness to terminate service work with Plaintiff and find ways to
circumvent the "non-compete" clause.
16. Plaintiff will suffer irreparable harm and injury if the action of Defendant Murray
is not enjoined, including but not limited to the loss of clients, profits, business reputation and
market share, the loss of confidential business information, and the continued loss of employees.
17. Accordingly, Plaintiff does not have an adequate remedy at law.
COUNTI
BREACH OF CONTRACT
18. Plaintiff incorporates herein by reference the allegations contained in Paragraphs 1
through 17 above, as fully as though set forth a length herein.
19. Upon information and belief, Defendant Murray has disclosed Plaintiffs
confidential information to others, including but not limited to customers and/or has made use of
such information on his own in connection with business dealings on his own behalf.
20. Upon information and belief, Defendant Murray has and continues to deal with
Plaintiff's customers with whom he dealt as an employee of Plaintiff, including but not limited
to Planet Fitness.
7
21. Upon information and belief, Defendant Murray continues to compete with
Plaintiff in the same geographical area to which he was assigned pursuant to his Agreement with
Plaintiff.
22. Defendant Murray's actions as described above constitute material breaches of his
Agreement with Plaintiff.
23. As a result of said actions, Plaintiff has suffered and will continue to suffer
immediate and irreparable harm for which Plaintiff has no adequate remedy at law.
24. Said wrongful acts will continue unless enjoined.
WHEREFORE, Plaintiff demands judgment against Defendant Murray and relief as follows:
(a) Preliminary and permanent injunctive relief enjoining Defendant Murray's
continued violation of his Agreement with Plaintiff, continued use of Plaintiffs
confidential information and continued contact with Plaintiff's customers, including
but not limited to Planet Fitness. .
(b) An order directing that Defendant Murray return to Plaintiff all of Plaintiff's
confidential information in his possession or under his control;
(c) Compensatory damages; and
(d) Such other relief as this Honorable Court deems appropriate.
8
COUNT H
BREACH OF FIDUCIARY DUTY
25. Plaintiff incorporates herein by reference the allegations contained in Paragraphs 1
through 24 as though set forth at length herein.
26. Upon information and belief, Defendant Murray will continue to act in the manner
described above, to the detriment of Plaintiff, all of which constitutes a breach of fiduciary duty
owned to Plaintiff by Defendant Murray.
27. As a result of said actions, Plaintiff has suffered and will continue to suffer
immediate and irreparable harm for which plaintiff has no adequate remedy at law.
28. Said wrongful acts will continue unless enjoined.
WHEREFORE, Plaintiff demands judgment against Defendant Murray, and relief as follows:
(a) Preliminary and permanent injunctive relief enjoining Defendant Murray's
continued violation of his Agreement with Plaintiff and use of Plaintiff's
confidential information;
(b) Impoundment of the originals and all copies of any of Plaintiffs confidential
information currently in Defendant Murray's possession and/or under Defendant
Murray's control;
(c) A declaration that Defendant Murray has willfully violated his fiduciary duties to
Plaintiff;
9
(d) An award of compensatory damages;
(e) An award of reasonable attorney's fees and costs; and
(f) Such other relief as this Honorable Court deems appropriate.
COUNT III
UNFAIR COMPETITION DISPARAGEMENT
29. Plaintiff incorporates herein by reference the allegations contained in Paragraphs 1
through 28 as though set forth at length herein.
30. As a direct and proximate result of the aforesaid actions of Defendant Murray,
Plaintiff has suffered and will continue to suffer immediate and irreparable injury, which cannot
be adequately remedied at law, which injury and harm is likely to continue unless enjoined.
WHEREFORE, Plaintiff demands judgment against Defendant Murray and relief as follows:
(a) Preliminary and permanent injunctive relief, enjoining Defendant from disparaging
the reputation and goodwill of Plaintiff;
(b) Compensatory and punitive damages; and
(c) Such other relief as this Honorable Court deems appropriate.
10
COUNT IV
UNFAIR COMPETITION USE OF TRADE SECRETS AND
CONFIDENTIAL INFORMATION
31. Plaintiff incorporates herein by reference the allegations contained in Paragraphs 1
through 30 as though set forth at length herein.
32. Upon information and belief, when Defendant Murray left the employ of Plaintiff,
he took with him various of Plaintiffs confidential information, including but not limited to
customer lists, catalogues, pricing strategies, pricing lists, marketing strategies and techniques,
and business strategies.
33. Upon information and belief, Defendant Murray is using this confidential
information on his own behalf.
34. Defendant's use of Plaintiffs confidential information has and will continue to
cause Plaintiff immediate and irreparable harm for which Plaintiff has no adequate remedy at
law.
WHEREFORE, Plaintiff demands judgment against Defendant Murray and relief as follows:
(a) Preliminary and permanent injunctive relief, enjoining Defendant's continued use
of Plaintiff's confidential information and trade secrets;
11
(b) Impoundment and return to Plaintiff of the originals and all copies of Plaintiff's
confidential information and trade secrets currently in Defendant's possession
and/or under Defendant's control;
(c) An award of compensatory and punitive damages; and
(c) Such other relief as this Honorable Court deems appropriate.
RESPECTFULLY SUBMITTED,
David C. Miller, Jr., Esquire
Supreme Court # 36504
Law Office of David C. Miller, Jr.
1100 Spring Garden Drive, Suite A
Middletown, PA 17057
717-939-9806
davidcmillejrn verizon-net
Attorney for Plaintiff,
AeroFitness Services, Inc.
EXHIBIT 44 A"
COMBINED AGREEMENT NOT TO DIS LASE PROPRIETARY OR
CONFIDENTIAL INFORMATION AND RESTRI ION AGAINST COMPETITION
1. Introduction. This Agreement is dated *'M5 -CU by and between
(the "Employee"), and AeroFitness Services, Inc.
(the "Corn any"). ---?
2. Identification of Parties. Whenever in this Agreement the terms "you" or "your" are used,
reference is being made to you, the Employee. Whenever the term "Company" is used, reference
is being made to AeroFitness Services, Inc. and all of its successors and assigns.
3. Consideration for Agree eft In consideration of your employment and/or promotion as a
the agreed-upon compensation, the sufficiency of which
you hereby acknowledge, YOU ggree to all of the terms and conditions contained in this
Agreement.
4. Agreement Not to Disclose CogldendalInformation.
(a) You acknowledge that the following items (collectively referred to as "confidential
information") used in the Company's business are secret, confidential, unique, and valuable,
were developed by the Company at great cost ar d over a long period of time, and that
disclosure or use of the Company's confidential information to or by anyone other than the
Company's officers, agents, or authorized Employees will cause the Company irreparable
injury. The Company's confidential information includes;
(i) Client lists, prospect call lists, and other customer data;
(ii). Price lists, vendor lists, computer printouts, accounts receivable reports, revenue reports
and similar financial information;
(iii) Proposals, contracts, leases, rental agreements, and marketing information;
(iv) Employee lists; and
(v) Such other Company information designated as confidential, propriety, and/or trade
secret to which you gain access during your employment.
(b) Except as required in the performance of your duds s as an Employee of the Company, you
agree not to disclose to anyone the Company's ;confidential information, whether such
information is developed before or after the date of this Agreement.
(e) The restrictions against disclosure contained in this Agreement apply during and after your
employment with the Company.
(d) The restrictions against disclosure contained in this Agreement also apply to confidential
information developed by you while employed by the Company.
(e) Upon termination of your employment for any mason, you will promptly deliver to the
Company all tangible objects containing confidential information, including all copies
thereof, whether prepared by you or others, that you possess or have under your control.
5. Restriction Against Conrel Lion
(a) You agree that throughout the term of your employment with the Company and for a period
of two (2) years thereafter, you will not, directly or indirectly, individually or in conjunction
with any other person, or as an employee, agent, representative, partner, or holder of any
interest in any other person, firm, corporation, or other association:
rson+ firm, or corporation, who or which at any time
(i) Solicit, entice, induce any person, a client or customer of the Company,
during your employment with the Company was fm, or corporation, or other
to become a client or customer of any other person,
association; anY
(ii) Authorize or direct any person, firm, or corporation to solicit, entice or induth the
person, firm or corporation, who or which at any time become a employment
or ent withr of client Company was a client or customer of the Company,
any other person, firm or corporation, or other association;
(iil) Solicit, entice, or induce any person who presently is or at any time during your
will be, an Employee of the Company, to become
employment with the Company
employed by any other person, firm, corporation, or other association, and you shall not
approach any such Employee for such purpose or authorize or direct the taking of such
actions by any other person;
(iv) Directly or indirectly solicit, participate in, or accept business similar to any aspect of
the Company's business from any person, firm, or other association, who or which was
a client or customer or prospect of the Company during your employment with the
Company and with whom you had business contact while employed by the Company.
"Business 'Contact" for these purposes shall include your Internet, computer,
telephonic, written and/or face to face business communication with representatives of
the customer or prospect.
Nothing In the foregoing shall prohibit you, after termination of your employment with the
Companyfirom engaging in any business that is not In competition with the Company. At no time
during or after your employment by the Company shall you be prohibited from investing in the
securities of any corporation having securities listed on a national security exchange, provided that
such investment does not exceed five percent of any class ofteeurities of any corporation engaged in
business in competition with the Company, and provided that sack ownership represents a passive
investment and that neither you nor any group of persons including you, in any way, either directly or
indirectly, manages or exercises control over any such corporation, guarantees any of its financial
obligations, or otherwise takes part in its business, except in the exercise of your rights as a
shareholder.
6. Remedies
(a) You acknowledge that the restrictions contained in this Agreement are reasonable and
necessary in view of the nature of the Company's business and it, order to protect the
legitimate business interests of the Company. You further acknowledge that your violation
of the restrictions, or any of them, would result in irreparable injury to the Company.
Therefore, you agree that, in the event of a breach or threatened breach by you of the
provisions of Paragraphs 4 or S of this Agreement, the Company shall be entitled to obtain
from any count of competent jurisdiction, preliminary and permanent igiunctive relief
restraining you from any violation of Paragraphs 4 or S of this Agreement.
(b) You nether agree that if the Company institutes legal action to enforce any provision of this
Agreement, you will pay the Company's reasonable attorneys' fees and litigation costs
incurred in enforcing the Agreement.
(c) Nothing herein shall be construed as prohibiting the Company from pursuing any other
remedies available to the Company for a breach or threatened breach of this Agreement.
(d) The parties acknowledge their intention that the Company shall have the broadest possible
protection of the value of the Company's business, consistent with public policy. Should a
court determine that the durational or geographical restrictions on post-employment
competition are broader than public policy allows, the parties agree to accept whatever the
court (duration or geographic scope) finds to be permissible under public policy.
7. Sw vtval
The provisions of Paragraphs 4, 5, and 6 shall survive the termination of your employment,
regardless of the reason for termination.
8. Miscemantous
(a) This Agreement cancels and supersedes any and all prior agreements and understandings
between or among you and the Company with respect to your employment with the
Company. This Agreement may not be modified in any respect except In a writing signed by
the parties hereto.
(b) All of the terns and provisions of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto, except that your duties and
responsibilities hereunder are of a personal nature and shall not be assignable or delegatable,
in whole or in part, by you.
9. Severability
In the event that any .provision(s) of this Agreement are deemed invalid, unreasonable or
unenforceable by any court of competent jurisdiction, such provision(s) shall be stricken from the
Agreement or modified so as to render it reasonable, and the remaining provisions of this Agreement
or the modified provision as.provided above shall continue in full force and effect and be binding
upon the parties.
10. Contralling Law
The validity, interpretation, construction, performance, and enforcement of this agreement shall
be governed by the laws of the Commonwealth of Pennsylvania. '
1N WITNESS WHEREOF, the parties have signed this agreement on the date set forth above, at
Pennsylvania.
Employee:
AEROFITNESS SERVICES, INC.
By:
.41d
VERIFICATION
John Gummo, states that he is President of AeroFitness Services, Inc., and that the facts set
forth in the foregoing Complaint are true and correct to the best of his knowledge, information
and belief, and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904
related to unworn falsification to authorities.
Date:
Jo Gummo
13
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
??,c>o fit cumbcx,14b
OFfiCE OF TyE'HERIFF
' ".' ??" r r rl
Jody S Smith
Chief Deputy
Edward L Schorpp
Solicitor
Aerofitness Services, Inc.
vs.
Clayton D. Murray
20! 0 .,ii' N 29
J'
Case Number
2010-428
SHERIFF'S RETURN OF SERVICE
01/22/2010 03:56 PM - Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on
January 22, 2010 at 1556 hours, she served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Clayton D. Murray, by making known unto Brandy Murray, Wife of
defendant at 813 Hummel Avenue, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and
at the same time handing to her personally the said true and correct copy of the same.
SHERIFF COST: $42.84
January 25, 2010
SO ANSWER
S
NY R ANDERSON, SHERIFF
BY C
Deputy Sheriff
(c) CountySuite Shenff. Teleosott, Inc.
V
FILED- FICE
The Law Offices of Leslie David Jacobson OF THE FIRIOTH >tiCM Y
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260 2010 FEB -5 PM 1: ; 0
TEL: (717) 909-5858
FAX: (717) 909-7788
Attorneys for Defendant PE-4"vSY N,,NA
AEROFITNESS SERVICES, INC. IN THE COURT OF COMMON PLEAS OF
Plaintiff, CUMBERLAND COUNTY,
PENNSYLVANIA
VS.
NO.: 2010-428 CIVIL TERM
CLAYTON D. MURRAY,
Defendant,
NOTICE TO PLEAD
TO: AEROFITNESS SERVICES, INC.
YOU ARE HERBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR
A JUDGMENT MAY BE ENTERED AGAINST YOU.
THE LAW OFFICES OF LESLIE DAVID JACOBSON
Dated. colt McPartland
ID# 209669
8150 Derry Street, Ste. A
Harrisburg, PA 17111
717.909.5858
FAX: 717.909.7788
Attorney for Defendant
AEROFITNESS SERVICES, INC
Plaintiff,
VS.
CLAYTON D. MURRAY,
Defendant,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.: 2010-428 CIVIL TERM
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER
AND NOW COMES, Clayton D. Murray, Defendant, by and through his attorneys, The
Law Offices of Leslie David Jacobson, and hereby files the following Answer to Plaintiff's
Complaint, and in support thereof states the following:
PARTIES
1. Admitted.
2. Admitted.
VENUE
3. Paragraph 3 of the Complaint contains legal assertions or conclusions to which no
responsive pleading is required. To the extent a response is deemed required, the allegations are
denied.
4. Admitted.
5. It is admitted that Defendant was employed by Plaintiff from June 21, 2004
through December 5, 2008. Defendant was employed as a service technician from June 21, 2004
through August of 2007. Defendant was employed as a warehouse manager from August of
2007 through December 5, 2008. It is further admitted that Defendant executed a "Combined
Agreement Not to Disclose Proprietary or Confidential Information and Restriction Against
Competition" on September 25, 2007.
6. Admitted.
2
7. Admitted.
8. Admitted in part and denied in part. It is denied that Defendant had access to
client lists, financial aspects, prospect call lists, accounts receivable reports, revenue reports,
proposals, and contracts. It is further denied that Defendant had access to trade secrets as that is
not applicable. The remaining averments in Paragraph 8 are admitted.
9. Denied. It is denied that the information and items set forth were competitively
sensitive information. It is further denied that disclosure of any information would operate to the
detriment of Plaintiff and to the commercial advantage of Plaintiff's competitors.
10. Admitted.
11. Admitted in part and denied in part. It is admitted that Paragraph 11 of the
Complaint reflects the language of the Agreement. By way of further response, the document
speaks for itself. It is denied that the document is enforceable against the Defendant.
12. Admitted.
13. Admitted in part and denied in part. It is admitted that Defendant accepted
employment with one of Plaintiff's customers, Planet Fitness, after Defendant left Plaintiff's
employ. By way of further response, Plaintiff was not the sole provider of services to Planet
Fitness and Planet Fitness was in the process of ending its relationship with Plaintiff. It is denied
that Defendant's actions were in contravention of the explicit terms of Defendant's Agreement.
14. Denied. It is denied that Defendant has used and will continue to use information
and knowledge he gained from his employment with Plaintiff to his commercial and competitive
advantage and to the commercial and competitive detriment of Plaintiff. By way of further
response, Defendant did not gain any special information or knowledge from his time of
3
employment with Plaintiff. Defendant already had this knowledge and information prior to his
employment with Plaintiff.
15. Denied. It is denied that Defendant approached one or more of Plaintiff's
customers, and in particular Planet Fitness, for the purpose of inducing Planet Fitness to
terminate service work with Plaintiff and find ways to circumvent the "non-compete" clause.
16. Denied. It is denied that Plaintiff will suffer any irreparable harm and/or injury if
the action of Defendant is not enjoined.
17. Paragraph 17 of the Complaint contains legal assertions or conclusions to which
no responsive pleading is required. To the extent a response is deemed required, the allegations
are denied. By way of further response, Plaintiff has the option to sue for damages and thus has
an additional remedy at law.
COUNTI
BREACH OF CONTRACT
18. Plaintiff incorporates by reference Paragraphs 1 through 17.
19. Denied. It is denied that Defendant has disclosed Plaintiff's confidential
information to others, including but not limited to customers and/or has made use of such
information on his own in connection with business dealings on his own behalf.
20. Denied. It is denied that Defendant has and continues to deal with Plaintiff's
customers with whom he dealt as an employee of Plaintiff, including but not limited to Planet
Fitness.
21. Denied. It is denied that Defendant continues to compete with Plaintiff in the
same geographical area to which he was assigned.
4
22. Denied. It is denied that Defendant's actions constitute material breaches of his
Agreement with Plaintiff.
23. Denied. It is denied that Plaintiff has suffered and will continue to suffer
immediate and irreparable harm as a result of Defendant's actions. By way of further response,
Plaintiff has the option to sue for damages and thus has an additional remedy at law.
24. Denied. It is denied that Defendant has committed any wrongful acts.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's
Complaint with prejudice and grant such other relief as the Court deems just and appropriate.
COUNT II
BREACH OF FIDUCIARY DUTY
25. Plaintiff incorporates by reference Paragraphs 1 through 24.
26. Denied. It is denied that Defendant has acted to the detriment of Plaintiff. It is
further denied that Defendant has breached a fiduciary duty owed to Plaintiff.
27. Denied. It is denied that Plaintiff has suffered and will continue to suffer
immediate and irreparable harm as a result of Defendant's actions. By way of further response,
Plaintiff has the option to sue for damages and thus has an additional remedy at law.
28. Denied. It is denied that Defendant has committed any wrongful acts.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's
Complaint with prejudice and grant such other relief as the Court deems just and appropriate.
COUNT M
UNFAIR COMPETITION - DISPARAGEMENT
29. Plaintiff incorporates by reference Paragraphs 1 through 28.
5
30. Denied. It is denied that Plaintiff has suffered and will continue to suffer
immediate and irreparable injury as a result of Defendant's actions. By way of further response,
Plaintiff has the option to sue for damages and thus has an additional remedy at law.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's
Complaint with prejudice and grant such other relief as the Court deems just and appropriate.
COUNT IV
UNFAIR COMPETITION USE OF TRADE SECRETS AND
CONFIDENTIAL INFORMATION
31. Plaintiff incorporates by reference Paragraphs 1 through 30.
32. Denied. It is denied that Defendant, upon leaving the employ of Plaintiff, took
with him Plaintiff's confidential information, including but not limited to customer lists,
catalogues, pricing strategies, pricing lists, marketing strategies and techniques, and business
strategies.
33. Denied. It is denied that Defendant is using this confidential information on his
own behalf.
34. Denied. It is denied that Defendant has used Plaintiff's confidential information.
By way of further response, Plaintiff has the option to sue for damages and thus has an additional
remedy at law.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's
Complaint with prejudice and grant such other relief as the Court deems just and appropriate.
6
NEW MATTER
35. Paragraphs 1 through 34 of Defendant's Answer are hereby incorporated by
reference.
36. Defendant was transferred by Plaintiff to the warehouse as a manager in July, 2007.
37. As a result of this change in employment status, Defendant's compensation was
reduced. This reduction was a result of the loss of a company paid vehicle, as well as fuel,
maintenance, and insurance allotment.
38. On September 25, 2007, Plaintiff requested that Defendant sign a Combined
Agreement not to Disclose Proprietary or Confidential Information and Restriction Against
Competition (Agreement).
39. Defendant informed Plaintiff that he did not think the Agreement was fair and he
did not wish to sign it.
40. Plaintiff informed Defendant that if he refused to sign the Agreement, he would be
terminated.
41. No consideration was given to Defendant at the time the Agreement was signed.
42. The application of the Agreement is not reasonably limited in time.
43. The application of the Agreement is not geographically limited to a reasonable
boundary.
44. Defendant was approached by the owners of Planet Fitness for the purpose of
employment.
45. Defendant did not solicit, entice, or induce said employment.
46. Defendant's scope of employment and job duties are considerably different with
Planet Fitness from that of Plaintiff.
7
WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in
his favor and grant such other relief as the Court deems just and appropriate.
Respectfully Submitted,
Dated:
Mc artland
Attorney I.D. No.: 209669
Leslie David Jacobson
Attorney I.D. No.: 52673
Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, PA 17111
717.909.5858
FAX: 717.909.7788
8
VERIFICATION
I, Clayton D. Murray, do hereby verify that the facts stated in the foregoing
document are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
§4904 relating to unsworn falsification to authorities.
Date: By ?--'
ayton JI).
AEROFITNESS SERVICES, INC.
Plaintiff,
VS.
CLAYTON D. MURRAY,
Defendant,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.: 2010-428 CIVIL TERM
CERTIFICATE OF SERVICE
I, Scott McPartland, do hereby certify that a copy of the foregoing Answer to the
Complaint was this day served upon the following person in the manner indicated below:
FIRST CLASS MAIL
David C. Miller, Jr., Esq.
1100 Spring Garden Drive, Ste. A
Middletown, PA 17057
DATED?110
Scott McPart and
Attorney for Defendant
9
AEROFITNESS SERVICES, INC.
Plaintiff
v.
CLAYTON D. MURRAY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
N0.2010-428 CIVIL TERM
CIVIL ACTION -LAW
PRAECIPE TO DISCONTINUE
TO: Prothonotary
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Please mazk the above-captioned matter as settled and discontinued with prejudice.
RESPECTFULLY SUBMITTED,
a
David C. Miller, Jr., Estee
Supreme Court # 36504
Law Office of David C. Miller, Jr.
1100 Spring Gazden Drive, Suite A
Middletown, PA 17057
717-939-9806
davidcmillerj rnverizon. net
Attorney for Plaintiff,
AeroFitness Services, Inc.
CERTIFICATE OF SERVICE
HEREBY CERTIFY that a true and correct copy of the foregoing document was served
upon counsel of record this -t.~ day of March, 2010, by depositing said copy in the United
States Mail at Middletown, Pennsylvania, postage prepaid, first class delivery, and addressed as
follows:
Scott McPartland, Esquire
Law Office of Leslie David Jacobson
8150 Derry Street
Harrisburg, PA 17111-5260
W OFFICES OF DAVID C. MILLER, JR.
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David C. Miller, Jr., quire