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HomeMy WebLinkAbout11-8285DESTINY IMAGE INC. COURT OF COMMON PLEAS 167 Walnut Bottom Road, CUMBERLAND COUNTY Shippensburg, PA 17257 Plaintiff, im o Imo- .__ No. 11-8285 Civil Term cnr' e e r Jr"'' -t r v V. 27' < o WILMER SINGLETON - Cn 44 Turner Drive, Fayatteville, PA 17222 MOTION FOR CONTINUANCE Defendant ..................................................... ..................................................... ................................................................ ................................:............................... .......... .......... ........ ........ ..... ..... MOTION FOR CONTINUANCE NOW COMES Plaintiff, Destiny Image Inc, by and through its attorney, Joel D. Nori, and moves for a continuance as follows: 1. The above-captioned matter is scheduled for a hearing on Plaintiffs motion for a preliminary injunction against Defendant on the 30th day of November, 2011, at 9:30 a.m. before Judge Masland in courtroom number 5. 2. The Defendant in this matter is Wilmer Singleton residing at 44 Turner Drive, Fayatteville, PA 17222. a. Plaintiff has not been able to discover if Defendant is represented by counsel. 3. The proceeding was scheduled by Order of Court. 4. Plaintiff requests a continuance for the following reasons: a. During the course of informal discovery, it has come to Plaintiff s attention that the joinder of additional parties may be necessary. b. Plaintiff has been unsuccessful in all attempts to establish communication with Defendant. WHEREFORE, Plaintiff respectfully requests that this Court continue the hearing for a preliminary injunction against Defendant for not less than 30 days for Plaintiff to investigate whether Plaintiff must join additional parties to this matter. /may ori, Esq., ID# 207248 Blair Nori Law Group, LLC., 167 Walnut Bottom Rd., Suite 300, Shippensburg, PA 17257 Dated: 2Z 5 DESTINY IMAGE INC. 167 Walnut Bottom Road, Shippensburg, PA 17257 Plaintiff, V. WILMER SINGLETON 44 Turner Drive, Fayatteville, PA 17222 COURT OF COMMON PLEAS CUMBERLAND COUNTY `-- No. 11-8285 Civil rnm s x rr o r- U)r ? no Q? ca >? C C-° w CD Defendant ORDER GRANTING CONTINUANCE /Vf day of November, 2011, upon consideration of the Motion for Continuance filed by AND NOW, this? ? Plaintiff, Destiny Image, Inc., it is hereby ORDERED and DECREED that the Motion for Continuance is Granted. ?. Ale- ,? . RT: (oi l mer M ?? D? .' r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Destiny Image Inc., 167 Walnut Bottom Road Shippensburg, PA 17257 Plaintiff, V. Wilmer Singleton 870 Woodlawn Drive Chambersburg, PA 17201 Defendant. cli 6 n ?i W Q)r- n -O r- No. 11-8285 r-< b v Q c.yn Dv -r s© Co z z- ? C `• -° Civil Actioff`;C 4 JURY TRIAL DEMANDED DEFENDANT WILMER SINGLETON'S PRELIMINARY OBJECTIONS TO THE COMPLAINT Defendant Wilmer Singleton, by and through his undersigned counsel, files the following Preliminary Objections to the Complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028. Preliminary Obiection I - Preliminary Objection Pursuant to Rule 1028(2) 1. On or about December 2, 2011, Plaintiff Destiny Image Inc. ("DI") filed a Complaint against Defendant Wilmer Singleton ("Singleton"). 2. The Complaint contains averments of facts not appearing of record. See, e.g., Complaint ¶¶ 5-10. 3. Pennsylvania Rule of Civil Procedure 1024(a) provides that "[e]very pleading containing an averment of fact not appearing of record in the action ... shall state that the averment ... is true upon the signer's personal knowledge or information and belief and shall be verified." 4. In violation of Pennsylvania Rule of Civil Procedure 1024(a), the Complaint is not verified. 5. Accordingly, Defendant Singleton respectfully requests that this Court dismiss the Complaint for violation of Rule 1024(a). Preliminary Objection II - Preliminary Objection Pursuant to Rule 1028(2) 6. Plaintiff's Complaint is signed by its attorney, Joel D. Nori, Esq. See Complaint at page 9. 7. Rule 205.1 requires, as evidence of an attorney's right to practice in the Commonwealth and therefore in this Court, that the attorney's current Supreme Court identification number issued by the Court Administrator of Pennsylvania be endorsed on all pleadings. Pennsylvania Rule of Civil Procedure 205.1 & 1976 Explanatory Comment ("Accordingly, the Rule provides that the signature of the attorney is sufficient authority to file the document, an endorsement of his address is a sufficient registration of address, and the notation of the current certificate number on his Court Administrator registration card is adequate proof of his right to practice in the county.") 8. Nowhere in the Complaint is there an endorsement of Attorney Nori's current Supreme Court identification number. 9. The Complaint does not identify another attorney licensed to practice in the Commonwealth. 10. The failure to endorse a current Supreme Court identification number is a violation of Pennsylvania Rule of Civil Procedure 205.1. 11. Wherefore, Defendant Singleton respectfully requests that this Court dismiss the Complaint for failure to comply with Rule 205.1. Preliminary Obiection III - Preliminary Objection Pursuant to Rule 1028(4) as to Count I of the Complaint 12. Plaintiff's Complaint purports to assert a claim for breach of contract in Count I. 13. The purported claim for breach of contract is based on the alleged existence of a valid and enforceable non-compete agreement. 2 In 14. The Complaint fails to set forth facts that establish that the alleged non-compete agreement is valid and enforceable. 15. Rather, the Complaint asserts only the legal conclusion that the Non-Compete Agreement is valid. 16. For a Non-Compete Agreement to be valid in the Commonwealth of Pennsylvania the agreement must be incident to an employment relationship between the parties; the restrictions imposed by the covenant must be reasonably necessary for the protection of the employer; and the restrictions imposed must be reasonably limited in duration and geographic extent. Hess v. Gebhard & Co. Inc., 808 A.2d 912, 917 (Pa. 2002). 17. There are no facts set forth in the Complaint establishing that the restrictions imposed are reasonably limited in duration and geographic extent. 18. Indeed, the Non-Compete Agreement attached as Exhibit A to the Complaint contains no limitation in geographic extent; and there are no averments of facts in the Complaint that, if proven, would establish that the unlimited geographic scope of the Non-Compete Agreement is reasonable. 19. Accordingly, Count I, which purports to set forth a breach of contract action, fails to set forth facts that establish a valid and enforceable contract. 20. Absent averments of fact that establish a valid and enforceable contract between the parties, Count I fails to state a claim for which relief can be granted. 21. Wherefore, Defendant Singleton respectfully requests that Count I be dismissed for failure to state a claim for which relief can be granted. 3 ,A. Preliminary Objection IV - Preliminary Objection Pursuant to Rule 1028(4) as to Count I of the Complaint 22. Assuming arguendo that Count I of the Complaint establishes a valid and enforceable contract, Count I fails to state a claim for which relief can be granted because it fails to assert facts with sufficient specificity to establish that Defendant Singleton has breached the contract. 23. For example, the Complaint asserts only the conclusion that "Defendant contacted a number of Plaintiffs existing and prospective authors and clients, with which [sic] Defendant had dealt or communicated with while employed by Plaintiff." 24. This conclusion is insufficient to state a cause of action for breach of the Non-Compete Agreement attached to the Complaint as Exhibit A. 25. The Non-Compete Agreement, even if valid, does not prohibit all contact with individuals who are under contract with Plaintiff. 26. The Non-Compete Agreement, if valid, prohibits only certain types of contacts between Defendant and the authors under contract with Plaintiff. Specifically, the Non-Compete Agreement -if valid and enforceable-provides that Defendant is prohibited from "compet[ing] with Destiny Image, Inc.... by (a) interfering with Destiny Image's business by soliciting, persuading or inducing any author that then has an agreement or relationship with Destiny Image, Inc." Complaint Exhibit A at 3. 27. According to the Non-Compete's terms, the mere contact between Defendant and an author that then has an agreement or relationship with Destiny Image, Inc. does not establish a violation. 28. Rather, Plaintiff must aver facts that, if proven, would show that a prohibited communication occurred. 4 IN 29. Moreover, Plaintiff must aver facts establishing the identity of the alleged "existing and prospective authors and clients, with which [sic] Defendant had dealt or communicated with while employed by Plaintiff' whom Defendant Singleton contacted in a manner that is prohibited by the Non-Compete Agreement. 30. Similarly, the Non-Compete Agreement, even if valid, does not prohibit all contact with individuals who are employed by Plaintiff. 31. Rather, the Non-Compete Agreement, if valid, prohibits "persuading or inducing any employee to resign employment with Destiny Image, Inc., or interfering or disrupting Destiny Image's relationship with its employees, representatives or agents, or soliciting or hiring any of Destiny Image's employees, representatives or agents." Complaint Exhibit A at 3. 32. There are no averments of fact in the Complaint that Defendant Singleton engaged in any specific act that is prohibited by the Non-Compete Agreement. 33. Vague, general allegations of wrongdoing are insufficient to state a claim for breach of contract under Pennsylvania law. 34. Wherefore, Defendant Singleton respectfully requests that Count I be dismissed for failure to state a claim for which relief can be granted. Preliminary Objection V - Preliminary Objection Pursuant to Rule 1028(4) as to Count II of the Complaint 35. Plaintiff s Complaint purports to assert a claim for breach of contract in Count II. 36. The purported breach of contract is based on the alleged existence of a valid and enforceable Non-Disclosure Agreement. 37. The Complaint fails to set forth facts that establish that the alleged Non-Disclosure Agreement is valid and enforceable. 5 38. Rather, the Complaint asserts only the legal conclusion that the Non-Disclosure Agreement is valid. 39. For a Non-Disclosure Agreement to be valid in the Commonwealth of Pennsylvania, the agreement must be incident to an employment relationship between the parties; the restrictions imposed by the covenant must be reasonably necessary for the protection of the employer; and the restrictions imposed must be reasonably limited in duration and geographic extent. Hess v. Gebhard & Co. Inc., 808 A.2d 912, 917 (Pa. 2002). 40. There are no facts set forth in the Complaint establishing that the restrictions imposed are reasonably limited in duration and geographic extent. 41. Indeed, the Non-Disclosure Agreement attached as Exhibit A to the Complaint contains no limitation in geographic extent; and there are no facts alleged in the Complaint that, if proven, would establish that the unlimited geographic scope of the Non- Disclosure Agreement is reasonable. 42. Wherefore, Defendant Singleton respectfully requests that Count II be dismissed for failure to state a claim for which relief can be granted. Preliminary Objection VI - Preliminary Objection Pursuant to Rule 1028(4) as to Count II of the Complaint 43. Plaintiff's Complaint purports to assert a claim for breach of contract in Count II. 44. The purported breach of contract is based on the alleged existence of a valid and enforceable Non-Disclosure Agreement. 45. The Complaint fails to set forth averments of fact that, if proven, would establish a breach of the Non-Disclosure Agreement, if that agreement is valid. 46. Instead, the Complaint merely asserts the conclusion that Defendant Singleton has breached the Non- Disclosure Agreement. 6 M 47. For example, the Complaint asserts only that Defendant Singleton divulged proprietary information in the form of production processes, authors' names, and contact information. 48. The Complaint fails to aver facts that, if proven, would establish that Plaintiff's production processes are proprietary. 49. The Complaint fails to aver facts that, if proven, would establish that proprietary information regarding production processes, if any exists, was disclosed. 50. The Complaint fails to aver facts that, if proven, would establish that authors' names constitutes proprietary information. 51. The Complaint fails to aver facts that, if proven, would establish that proprietary information regarding authors' names, if any exists, was disclosed. 52. The Complaint fails to aver facts that, if proven, would establish that authors' contact information constitutes proprietary information. 53. The Complaint fails to aver facts that, if proven, would establish that proprietary information regarding authors' contact information, if any exists, was disclosed. 54. Wherefore, Defendant Singleton respectfully requests that Count II be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection VII - Preliminary Obiection Pursuant to Rule 1028(4) as to Count III of the Complaint 55. Plaintiff's Complaint purports to assert a claim for breach of fiduciary duty in Count III of the Complaint. 56. Plaintiff fails to aver facts that, if proven, would establish that there existed a relationship from which a fiduciary duty arose. 57. Rather, plaintiff merely alleges that Defendant Singleton provided Plaintiff s proprietary information to another entity, Pure Word Partners, LLC. 7 58. Plaintiff fails to aver facts that, if proven, would establish that any information was disclosed to Pure Word Partners, LLC. 59. Plaintiff fails to aver facts that, if proven, would establish that any information disclosed to Pure Word Partners, LLC was proprietary. 60. Plaintiff fails to identify a single communication between Defendant and an existing and/or potential author and client of Plaintiff that was in violation of a duty owed by Defendant to Plaintiff. 61. Absent averments of facts establishing these elements, Plaintiff has failed to state a claim for breach of fiduciary duty. 62. Wherefore, Defendant Singleton respectfully requests that Count III be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection VIII - Preliminary Obiection Pursuant to Rule 1028(4) as to Count IV of the Complaint 63. Plaintiff's Complaint purports to assert a claim for Tortious Interference of Contract 64. Plaintiff's Complaint avers that Defendant is prohibited from engaging in acts that would interfere with Plaintiffs existing contractual relationships with its authors because of the existence of an alleged Non-Compete Agreement. 65. Put another way, Plaintiff's Complaint, by its own terms, attempts to assert a claim in tort based on a violation of a contract. 66. A claim for tortious interference with contract cannot be founded on an allegedly valid contract between the plaintiff and the defendant. 67. Accordingly, and based on Plaintiff's own allegations, the cause of action attempted to be set forth in Count IV arises, if at all, in contract and therefore Count IV fails to state a claim for which relief can be granted. 8 68. Wherefore, Defendant Singleton respectfully requests that Count IV be dismissed for failure to state a claim for which relief can be granted. Respectfully submitted, David T. Miller PA ID # 84433 Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 717.609.4930 (T) 888.277.8370 (F) davidkmmlawfirmllc.com Attorney for Defendant Wilmer Singleton 9 Certificate of Service The undersigned certifies that a copy of the foregoing was served on the following party by First Class Mail, postage prepaid on December 27, 2011 to: Joel D. Nori, Esq. Blair Nori Law Group, LLC. 167 Walnut Bottom Road Suite 300 Shippensburg, PA 17257 Counsel for Plaintiff Destiny Image Inc. David T. Miller PA ID # 84433 Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 717.609.4930 (T) 888.277.8370 (F) davidkmmlawfirmllc.com Attorney for Defendant Wilmer Singleton 10 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff OFFICE PF 7Hv ';rERI?? FILED-OF ICE THI-7 PROTHONOTARY Jody S Smith Chief Deputy Richard W Stewart Solicitor 2012 JAN 13 PM 3: 02 CUMBERLAND COUNTY PENNSYLVANIA Destiny Image, Inc. Case Number vs. Wilmer Singleton 2011-8285 SHERIFF'S RETURN OF SERVICE 11/03/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Wilmer Singleton, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Franklin County, Pennsylvania to serve the within Complaint and Notice according to law. 12/02/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Wilmer Singleton, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Franklin County, Pennsylvania to serve the within Complaint and Notice according to law. 12/05/2011 Franklin County Return: And now, December 5, 2011 I, Dane Anthony, Sheriff of Franklin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Wilmer Singleton the defendant named in the within Complaint and Notice and that I am unable to find him in the County of Franklin and therefore return same NOT FOUND. Request for service at 44 Turner Drive, Fayettville, Pennsylvania 17222 is vacant. 12/08/2011 03:30 PM - Franklin County Return: And now December 8, 2011 at 1530 hours I, Dane Anthony, Sheriff of Franklin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Wilmer Singleton by making known unto himself personally, at 870 Woodlawn Drive, Chambersburg, Pennsylvania 17201 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $62.44 January 11, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF (c CouitySuile She111f 7ele0spft. Inc. SHERIFF'S RETURN - REGULAR CASE NO: 2011-00250 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN DESTINY IMAGE INC VS WILMER SINGLETON ANGEL L LAVIENA , Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within AMENDED COMP CIV ACT was served upon SINGLETON WILMER the DEFENDANT , at 1530:00 Hour, on the 8th day of December-, 2011 at 870 WOODLAWN ROAD CHAMBERSBURG, PA 17202-2000 by handing to a true and attested copy of AMENDED COMP CIV ACT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: .00 .00 ANGEL L A .00 .00 By .00 eputy Sheriff .00 01/04/2012 JOEL NORI ESQ Sworn and Subscribed to before m his ?- day of 070 A. D. Notar COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL RICHARD D. MCCARTY, Notary Public Chambersburg Bom., Franldin County My Commis:;;.,:, Jan. 28. 2015 SHERIFF'S RETURN - NOT SERVED CASE NO: 2011-00250 T COMMONWEALTH OF PENNSYLVANIA COUNTY OF FRANKLIN DESTINY IMAGE INC VS WILMER SINGLETON AtCyet 4aw-,-? , who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT to wit: SINGLETON WILMER but was unable to locate Him in his bailiwick COMPLAINT He therefore returns the the within named DEFENDANT SINGLETON WILMER 44 TURNER DRIVE NOT SERVED , as to FAYETTEVILLE, PA 17222 HOUSE IS VACANT Sheriff's Costs: So answers: Docketing .00 Service .00 Affidavit .00 a.Q Surcharge .00 .00 .00 JOEL NORI ESQ 12/05/2011 Sworn and subscribed to before me S" i th s ? da of Sheriff RICHARD D. MCCARTY, Notary Public Chambersburg Boro., Franklin County MY Commission Expires Jan. 29, 2015 DESTINY IMAGE INC. 167 Walnut Bottom Road, Shippensburg, PA 17257 Plaintiff, V. WILMER SINGLETON 870 Woodlawn Drive, Chambersburg, PA 17201-4818 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY c No. 11-8285 f f r ? r y RESPONSE TO PRELIMINARY OBJECITONS RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, this 17`h day of January, 2012, comes Destiny Image, Inc., the Plaintiff above named, by and through their attorney, Joel D. Nori Esq., of the Blair Nori Law Group, LLC., and replies to Defendant's Preliminary Objections to the Amended Complaint as follows: Response to Preliminary Objection I 1. In response to paragraphs 1-5 of Defendant's Preliminary Objections Plaintiff has filed a Second Amended Complaint as of course pursuant to Pennsylvania Rules of Civil Procedure 1028(c)(1). Response to Preliminary Objection II 2. In response to paragraphs 6-11 of Defendant's Preliminary Objections Plaintiff has filed a Second Amended Complaint as of course pursuant to Pennsylvania Rules of Civil Procedure 1028(c)(1). Response to Preliminary Objection III as to Count I of the Amended Complaint 3. Paragraph 12 of Defendant's Preliminary Objections is admitted. 4. Paragraph 13 of Defendant's Preliminary Objections is admitted. 5. Paragraph 14 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Amended Complaint. Also, the Non-Compete agreement attached to the Amended Complaint as exhibit "A" speaks for itself. 6. Paragraph 15 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Amended Complaint. Also, the Non-Compete agreement attached to the Amended Complaint as exhibit "A" speaks for itself. 7. Paragraph 16 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 16 of Defendant's Preliminary Objections is denied. Moreover, the law in the Commonwealth is clear that the burden falls on the party who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful. Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 166 (Pa. 1955). 8. Paragraph 17 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Amended Complaint. Also, the Non-Compete agreement attached to the Amended Complaint as exhibit "A" speaks for itself. 9. Paragraph 18 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Amended Complaint. Also, the Non-Compete agreement attached to the Amended Complaint as exhibit "A" speaks for itself. Moreover, when a geographic scope is not specified in a Non-Compete agreement, Pennsylvania courts will supply a reasonable scope. Davis & Warde, Inc. v. Tripodi, 420 Pa. Super. 450, 457 (Pa. Super. Ct. 1992); Quaker City Engine Rebuilders, Inc. v. Toscano, 369 Pa. Super. 573, 584 (Pa. Super. Ct. 1987). Therefore, even if the Court were to find that the Non- Compete agreement was not appropriately limited in geographic scope it would not be grounds for dismissal for failure to state a claim upon which relief can be granted. 10. Paragraph 19 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 19 of Defendant's Preliminary Objections is denied. 11. Paragraph 20 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 20 of Defendant's Preliminary Objections is denied. 12. Paragraph 21 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection IV as to Count I of the Amended Complaint 13. Paragraph 22 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Amended Complaint. 14. Paragraph 23 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Amended Complaint. 15. Paragraph 24 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 24 of Defendant's Preliminary Objections is denied. 16. Paragraph 25 of Defendant's Preliminary Objections is admitted. 17. Paragraph 26 of Defendant's Preliminary Objections is admitted in part and denied in part. It is admitted that the type of contact alleged in paragraph 26 of Defendant's Preliminary Objections is prohibited by the Non-Compete agreement. However, it is denied that this is the only type of contact prohibited by the Non-Compete agreement. 18. Paragraph 27 of Defendant's Preliminary Objections is admitted. 19. Paragraph 28 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required paragraph 28 of Defendant's Preliminary Objections is denied. 20. Paragraph 29 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required paragraph 29 of Defendant's Preliminary Objections is denied. By way of further response, paragraph 29 of Defendant's Preliminary Objections purports to require the averment of facts that are in the exclusive possession of Defendant. Further discovery is necessary before a list of the authors and the extent of Defendant's prohibited communications could be provided. 21. Paragraph 30 of Defendant's Preliminary Objections is admitted. 22. Paragraph 31 of Defendant's Preliminary Objections is admitted in part and denied in part. It is admitted that the type of contact alleged in paragraph 31 of Defendant's Preliminary Objections is prohibited by the Non-Compete agreement. However, it is denied that this is the only type of contact prohibited by the Non-Compete agreement. 23. Paragraph 32 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Amended Complaint. 24. Paragraph 33 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent a response may be required, Paragraph 33 of Defendant's Preliminary Objections is denied. 25. Paragraph 34 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection V as to Count II of the Amended Complaint 26. Paragraph 35 of Defendant's Preliminary Objections is admitted. 27. Paragraph 36 of Defendant's Preliminary Objections is admitted. 28. Paragraph 37 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Amended Complaint. Also, the Non-Disclosure agreement attached to the Amended Complaint as exhibit "D" speaks for itself. 29. Paragraph 38 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Amended Complaint. Also, the Non-Disclosure agreement attached to the Amended Complaint as exhibit "D" speaks for itself. 30. Paragraph 39 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 39 of Defendant's Preliminary Objections is denied. Moreover, the law in the Commonwealth is clear that the burden falls on the party who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful. Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 166 (Pa. 1955). 31. Paragraph 40 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Amended Complaint. Also, the Non-Disclosure agreement attached to the Amended Complaint as exhibit "D" speaks for itself. 32. Paragraph 41 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Amended Complaint. Also, the Non-Disclosure agreement attached to the Amended Complaint as exhibit "D" speaks for itself. Moreover, when a geographic scope is not specified in a Non-Disclosure agreement, Pennsylvania courts will supply a reasonable scope. Davis & Warde, Inc. v. Tripodi, 420 Pa. Super. 450, 457 (Pa. Super. Ct. 1992); Quaker City Engine Rebuilders, Inc. v. Toscano, 369 Pa. Super. 573, 584 (Pa. Super. Ct. 1987). Therefore, even if the Court were to find that the Non- Disclosure agreement was not appropriately limited in geographic scope it would not be grounds for dismissal for failure to state a claim upon which relief can be granted. 33. Paragraph 42 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection VI as to Count II of the Amended Complaint 34. Paragraph 43 of Defendant's Preliminary Objections is admitted. 35. Paragraph 44 of Defendant's Preliminary Objections is admitted. 36. Paragraph 45 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement was breached by the Defendant in paragraphs 21-26 of the Amended Complaint. 37. Paragraph 46 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement was breached by the Defendant in paragraphs 21-26 of the Amended Complaint. 38. Paragraph 47 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement was breached by the Defendant in paragraphs 21-26 of the Amended Complaint. 39. Paragraph 48 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Plaintiff's production processes are proprietary. 40. Paragraph 49 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant disclosed production processes in breach of the Non-Disclosure agreement. 41. Paragraph 50 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that authors' names constitute proprietary information. Moreover, customer lists have long been protected as confidential and trade secrets under Pennsylvania law. Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 623 (Pa. 1957). In the present case, authors' names are Plaintiff s customer list and, as such, constitute proprietary information. 42. Paragraph 51 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant disclosed proprietary information in the form of authors' names. 43. Paragraph 52 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that authors' contact information constitute proprietary information. Moreover, customer information which has been compiled represents a material investment of employers' time and money. Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 623 (Pa. 1957). Furthermore, customer data is entitled to protection independent of a nondisclosure contract. Id. At 623-24. Likewise, customer information is entitled to the same protection afforded to other trade secrets. West Mountain Poultry Co. v. Gress, 309 Pa. Super. 361, 366 (Pa. Super. Ct. 1982). In the present case, authors' contact information constitutes Plaintiff s customer information and, as such, is proprietary information. 44. Paragraph 53 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant disclosed proprietary information in the form of authors' contact information. 45. Paragraph 54 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection VII as to Count III of the Amended Complaint 46. Paragraph 55 of Defendant's Preliminary Objections is admitted. 47. Paragraph 56 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish the existence of a relationship from which a fiduciary duty arose in paragraphs 27-32 of the Amended Complaint. 48. Paragraph 57 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish the existence of a relationship from which a fiduciary duty arose in paragraphs 27-32 of the Amended Complaint. 49. Paragraph 58 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the fiduciary relationship was breached in paragraphs 27-32 of the Amended Complaint. 50. Paragraph 59 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the information disclosed was proprietary in paragraphs 27-32 of the Amended Complaint. 51. Paragraph 60 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the fiduciary relationship was breached in paragraphs 27-32 of the Amended Complaint. 52. Paragraph 61 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 61 of Defendant's Preliminary Objections is denied. 53. Paragraph 62 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection VIII as to Count IV of the Amended Complaint 54. Paragraph 63 of Defendant's Preliminary Objections is admitted. 55. Paragraph 64 of Defendant's Preliminary Objections is denied. Paragraph 64 of Defendant's Preliminary Objections mischaracterizes Count IV of the Amended Complaint. Count IV relies on the existence of contracts between Plaintiff and authors, and Plaintiff and employees, the benefit of which was tortiously interfered with by Defendant. 56. Paragraph 65 of Defendant's Preliminary Objections is denied. Paragraph 65 of Defendant's Preliminary Objections mischaracterizes Count IV of the Amended Complaint. 57. Paragraph 66 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent a response may be required, paragraph 66 of Defendant's Preliminary Objections is denied. Plaintiff s Count IV lies in tort and is totally independent from the existence of any contract between Defendant and Plaintiff. 58. Under Pennsylvania Rules of Civil Procedure 1020, Plaintiff is well within its rights to plead more than one cause of action and to plead alternative theories of liability. 59. Paragraph 67 of Defendant's Preliminary Objections is a mischaracterization of Plaintiffs Count IV and is denied. 60. Paragraph 68 of Defendant's Preliminary Objections is a request for relief to which no response is required. Resp ed, b _ JO . NORI ESQ. . # 307248 Blair and Nori Law Group, LLC., 167 Walnut Bottom Road, Suite 300, Shippensburg, PA 17257 717-729-6358 Dated: 1 7 1 Z CERTIFICATE OF SERVICE JOEL D. Nori, attorney for Destiny Image, Inc., certifies that a true and correct copy of the foregoing Response to Defendant's Preliminary Objections was served on the following party by causing a copy to be delivered to Defendant's Attorney at: David T. Miller, Esq. Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 Counsel for Defendant Wilmer Singleton by Federal Express Mail, postage prepaid, on January 17, 2012. JOEL D. NORI ESQ. I.D. # 307248 Blair and Nori Law Group LLC 167 Walnut Bottom Road Suite 300 Shippensburg, PA 17257 717-729-6358 Attorney for Plaintiff Destiny Image Inc. DESTINY IMAGE INC. 167 Walnut Bottom Road, Shippensburg, PA 17257 Plaintiff, V. WILMER SINGLETON 870 Woodlawn Drive, Chambersburg, PA 17201-4818 COURT OF COMMON PLEAS CUMBERLAND COUNTY nip Cn r i'C.7 -.? o , No. 11-8285 cam = C:) : SECOND AMENDED COMPLAINT Defendant. 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 an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORT STREET CARLISLE, PA 17013 1800-990-9108 OR 717-249-3166 DESTINY IMAGE INC. 167 Walnut Bottom Road, Shippensburg, PA 17257 Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 11-8285 V. WILMER SINGLETON 870 Woodlawn Drive, Chambersburg, PA 17201-4818 SECOND AMENDED COMPLAINT Defendant. ........................................................................................................................................... ........................................................................................................................................... COMPLAINT AND NOW, this 17th day of January, 2012, comes Destiny Image, Inc., the Plaintiff above named, by and through their attorney, Joel D. Nori Esq., of the Blair Nori Law Group, LLC., and respectfully avers as follows: 1. Plaintiff, Destiny Image, Inc., is a Pennsylvania corporation doing business at 167 Walnut Bottom Road, Shippensburg, PA 17257. 2. Plaintiff is in the business of publishing and distributing books and other multi-media products throughout the United States and the World. 3. Defendant, Wilmer Singleton, is an individual whose address is 870 Woodlawn Drive, Chambersburg, PA 17201-4818. COUNT I BREACH OF CONTRACT (NON-COMPETE AGREEMENT) 4. The allegations set forth in paragraphs 1 through 3 hereof are incorporated by reference as if set forth in full. 5. On or about June 4, 2010, Plaintiff hired Defendant as an acquisitions agent. 6. On or about June 4, 2010, as a condition of employment, Defendant entered into a valid employment contract including a separately executed Non-Compete Agreement. A true and correct copy of the employment agreement including the Non-Compete Agreement is attached hereto as Exhibit "A." 7. On or about June 1, 2011 Defendant's employment with Plaintiff was terminated. 8. Sometime after its formation, Defendant became an owner and/or employed and/or began acting as an agent for Pure Word Partners, LLC. 9. Pure Word Partners, LLC., is a Pennsylvania Limited Liability Company formed on July 13, 2011. The Company is in the business of publishing and distributing books. Its registered office address is 14840 Hollowell Church Road, Waynesboro, PA 17268. 10. On or about August 15, 2011, the domain name www.purewordpartners.com was registered under Defendant's name. A copy of the domain registration confirmation is attached hereto as Exhibit "B". 11. The Non-Compete Agreement between Plaintiff and Defendant provides that Defendant, while employed by Plaintiff and after termination (regardless of when and for what reason such termination occurs) until the expiration of one (1) year after such termination, shall not compete with Plaintiff directly or indirectly, either on his own behalf or as a partner, joint venture, officer, director, employer, employee, consultant, agent or in any other manner of capacity in connection with any other persons by: (a) interfering with Plaintiff's business by soliciting, persuading or inducing any author that then has an agreement or relationship with Plaintiff; (b) persuading or inducing any employee to resign employment with Plaintiff, or interfering or disrupting Plaintiff's relationship with its employees, representatives or agents, or soliciting or hiring any of Plaintiff's employees, representatives or agents. 12. During Defendant's employment with Plaintiff, Plaintiff provided Defendant with specialized training, the support, expertise and ability of its staff for the purpose of maintaining existing author and client relationships, and obtaining new authors and clients. These resources were provided by Plaintiff at significant expense and enabled Defendant to build and maintain special relationships and rapport with Plaintiff's authors and clients. 13. At the time Defendant's employment was terminated with Plaintiff, every author and client relationship with which Defendant was involved resulted from contacts supplied by Plaintiff or through other contacts developed by Defendant in his capacity as an employee of Plaintiff and Defendant was the beneficiary of significant amounts of support and services performed by other employees of Plaintiff. 14. After becoming employed by Pure Word Partners, LLC., Defendant, as an agent, owner and/or employee of Pure Word Partners, LLC, contacted a number of Plaintiff's existing and prospective authors and clients, with which Defendant had dealt or communicated with while employed by Plaintiff, with the purpose of soliciting, inducing and persuading Plaintiff's existing and prospective authors to engage Defendant's services thereby breaching his Non-Compete Agreement with Plaintiff. 15. After becoming employed by Pure Word Partners, LLC., Defendant used author information obtained as a result of his tenure with Plaintiff to begin publishing books by authors with preexisting relationships with Plaintiff thereby breaching his Non-Compete Agreement with Plaintiff. 16. After Defendant's employment with Plaintiff was terminated Defendant actively contacted a number of Plaintiff's employees in an attempt to interfere or disrupt Plaintiff's employment relationship with its employees thereby breaching his Non- Compete Agreement with Plaintiff. 17. After Defendant's employment with Plaintiff was terminated, Defendant successfully induced Plaintiff's staff publisher, Dana Loch, to provide proprietary information and production processes to Defendant thereby breaching his Non-Compete Agreement with Plaintiff. 18. After Defendant's employment with Plaintiff was terminated, Defendant successfully induced one or more of Plaintiff's employees to resign thereby breaching his Non- Compete Agreement with Plaintiff. 19. On or about October 15, 2011, a cease and desist letter was sent to Defendant demanding he discontinue the conduct in breach of his employment contract and Non-Compete Agreement with Plaintiff. A true and correct copy of the cease and desist letter is attached hereto as Exhibit "C". 20. The acts of Defendant described in this Count, including Defendant's repeated solicitation and communication with authors that have preexisting relationships with Plaintiff and Defendant's disruptive communications with employees of Plaintiff, have caused and will continue to cause Plaintiff irreparable harm for which Plaintiff has no adequate remedy at law and has and will continue to cause money damages to Plaintiff, including the loss of profits and goodwill. WHEREFORE, Plaintiff respectfully requests that the Court enter a preliminary and permanent injunction enjoining Defendant from competing with Plaintiff, for a period of one (1) year from the date of his termination, directly or indirectly, either on his own behalf or as a partner, joint venture, officer, director, employer, employee, consultant, agent or in any other manner of capacity in connection with any other persons by: (a) interfering with Plaintiff's business by soliciting, persuading or inducing any author that then has an agreement or employment with Plaintiff; (b) persuading or inducing any employee to resign employment with Plaintiff, or interfering or disrupting Plaintiff's relationship with its employees, representatives or agents, or soliciting or hiring any of Plaintiff's employees, representatives or agents. Plaintiff also respectfully requests that the Court award monetary damages for lost profits and the loss of goodwill that resulted from Defendant's actions, award punitive damages, award reasonable attorney's fees, costs of court and interest, and award such further and other relief as may be deemed appropriate. COUNT II BREACH OF CONTRACT (NON-DISCLOSURE AGREEMENT) 21. The allegations set forth in paragraphs 1 through 20 hereof are incorporated by reference as if set forth in full. 22. On or about June 4, 2010, as a condition of employment, Defendant entered into a valid employment contract including a separately executed Non-Disclosure Agreement. A true and correct copy of the employment agreement including the Non-Disclosure Agreement is attached hereto as Exhibit "D." 23. The Non-Disclosure Agreement between Plaintiff and Defendant provides that at no time while retained by Plaintiff and at no time after the termination of employment shall the employee use in any manner or disclose to any person the identities or lists of authors (whether actual or prospective), unpublished manuscripts or other works in progress, trade secrets, financial information or any other confidential and/or proprietary information pertaining to Plaintiff, or its businesses, operations, affairs or relationships with others. 24. During Defendant's employment with Plaintiff, Defendant was given access to proprietary information about Plaintiff, including production processes, lists of existing and potential authors and clients, and their preferences and contact information. 25. After Defendant's employment with Plaintiff was terminated, Defendant breached the Non-Disclosure Agreement by divulging proprietary information in the form of production processes, authors' names and contact information to Pure Word Partners, LLC. 26. The acts of Defendant described in this Count have caused and will continue to cause Plaintiff irreparable harm for which Plaintiff has no adequate remedy at law and has and will continue to cause money damages to Plaintiff, including the loss of profits and goodwill. WHEREFORE, Plaintiff respectfully requests that the Court enter a preliminary and permanent injunction enjoining Defendant from using in any manner or disclosing to any person the identities or lists of authors (whether actual or prospective), unpublished manuscripts or other works in progress, trade secrets, financial information or any other confidential and/or proprietary information pertaining to Plaintiff, or its businesses, operations, affairs or relationships with others. Plaintiff also respectfully requests that the Court award monetary damages for lost profits and the loss of goodwill that resulted from Defendant's actions, award punitive damages, award reasonable attorney's fees, costs of court and interest, and award such further and other relief as may be deemed appropriate. COUNT III BREACH OF FIDUCIARY DUTY 27. The allegations set forth in paragraphs 1 through 26 hereof are incorporated by reference as if set forth in full. 28. Defendant owed Plaintiff a fiduciary duty of loyalty because during Defendant's employment with Plaintiff, Defendant was in a position of trust and confidence and Plaintiff gave Defendant access to proprietary information, including the names preferences, contact information, and existing contract details of authors and clients. 29. Defendant breached his fiduciary duty to Plaintiff when he disclosed the proprietary information, gained through his employment with Plaintiff, to Pure Word Partners, LLC. 30. Defendant breached his fiduciary duty to Plaintiff when he used the proprietary information, gained through his employment with Plaintiff, to contact existing and potential authors and clients of Plaintiff to publish their books. 31. The acts of Defendant alleged in this Count were done with a reckless indifference to the rights of Plaintiff or were an intentional and wanton violation of those rights. 32. The acts of Defendant alleged in this Count have caused and will continue to cause Plaintiff irreparable harm for which Plaintiff has no adequate remedy at law and has caused and will continue to cause money damages to Plaintiff, including loss of profits and goodwill. WHEREFORE, Plaintiff respectfully requests that the Court enter a preliminary and permanent injunction enjoining Defendant from breaching his duty of fiduciary loyalty by using Plaintiff's proprietary information, including the names, preferences, contact information, and existing contract details of current and potential authors and clients in his employment with, and for the benefit of, Pure Word Partners, LLC. Plaintiff also respectfully requests that the Court award monetary damages for lost profits and the loss of goodwill that resulted from Defendant's actions, award punitive damages, award reasonable attorney's fees, costs of court and interest, and award such further and other relief as may be deemed appropriate. COUNT IV TORTIOUS INTERFERENCE WITH CONTRACT 33. The allegations set forth in paragraphs 1 through 32 hereof are incorporated by reference as if set forth in full. 34. As a condition of employment all of Plaintiff's employees are required to sign an employment contract, including a separately executed Non-Compete Agreement and a Non-Disclosure Agreement. 35. On or about December 13, 2010, Plaintiff hired employee, Dana Loch, as staff publisher. A copy of employee, Dana Loch's, employment agreement including the Non-Compete Agreement and the Non-Disclosure Agreement is attached hereto as exhibit "E". 36. Defendant was, at all times relevant to this Complaint, aware of employee, Dana Loch's, employment with Plaintiff. 37. Between April, 2011, and October, 2011, while employee, Dana Loch, was still employed by Plaintiff, Defendant contacted employee, Dana Loch, and persuaded her to provide Defendant with proprietary information which he knew was a breach of her employment contract with Plaintiff. 38. On or around October, 2011, employee, Dana Loch, resigned as staff publisher from Plaintiff. 39. During employee, Dana Loch's, tenure, and after her resignation from Plaintiff, Defendant recruited employee, Dana Loch, to Plaintiff s competitor, Pure Word Partners, LLC., in breach of her Non-Compete Agreement. 40. The acts of Defendant alleged in this Count have caused Plaintiff direct and consequential damages in the amount of $32,800. This figure represents the cost of hiring and training replacement employees, the opportunity costs that resulted from operating without a staff publisher, and the increased work load on existing employees. 41. The acts of Defendant alleged in this Count have caused and will continue to cause loss of profits and goodwill. WHEREFORE, Plaintiff respectfully requests that the Court award direct and consequential damages in the amount of $32,800, additional monetary damages for the loss of goodwill that resulted from Defendant's actions, award punitive damages, award reasonable attorney's fees, costs of court and interest, and award such further and other relief as may be deemed appropriate. Respe by: J D. NORI ESQ. I.D. # 307248 Blair and Nori Law Group, LLC., 167 Walnut Bottom Road, Suite 300, Shippensburg, PA 17257 717-729-6358 Dated: / -7 1 ccA99 Exhibit D Destin Y Image, PUBLISHERS, MEDIA ENGINEERING June 4, 2010 Wilmer Singleton ADDRESS RE: Offer of Employment Dear Wilmer: 167 WaIdul Bottom Road P.O. BOX 310 Shippertsburg, PA 17257-1!310 (717) 532-3040 FAX (717) 532-9291 Internet: wwlwvAestinyimagexom This letter confirms the verbal offer of employment made to you and explains the basic framework around which your employment relationship with Destiny Image, Inc. will be terms and conditions of your employment include the following. built. The o Start Datei l ime. June 4, 2010 a Annualized Salary/ Hourly Rate: $26,000 based on a full time work load (payable in bi- weekly installments during your active employment) i o Position Title: Acquisitions Agent j n Rpnnrts To Dean Drawbauah i o Position Classification: Exempt o Employee Benefits: - Group medical, dental, vision insurance plans. - Group term life insurance plan (if enrolled in medical plan). - Vacation time up to 5 days the first year, accrued after successful completion of Introductory Period. Paid Holidays, Personal Day I? Access to 401 (k) Retirement Savings Plan (after successful completion of one year of service). Details of these employee benefits will be provided at new employee orientation with SI i aron Mort, Benefits Administrator on MONDAY, JUNE 7, at 9a. Please bring along documents to show your citizenship for Employment Eligibility requirements, and signed letter and agreement. SPEAKING TO THE PURPOSES OF GOD FOR THIS GENERATION AND FOR THE GENERATIONS TO GOME." Also enclosed you will find a Non-Disclosure and Non-Compete Agreement. This offe employment is contingent upon you signing this enclosed Agreement. Should you accept this offer of employment, the first ninety days of your employment with Destiny Image, Inc. will be considered your Introductory Period. The purpose of the Introductory Period is to give new employees the opportunity to demonstrate their ability to achieve a satisfactory level of performance and to determine whether their new position and Destiny Image, Inc. i? general meet their expectations. This does not bind you to work for us for the 90-day period, nor does it bind us to maintain your employment for that same time. Your employment with us will be "at- will," which means that either you or we can terminate the employment relationship at any time, even during the Introductory Period. i This offer of employment, including the contents of this letter, shall in no event be constructed as an employment contract or any other promise of continuing employment, as employment with Destiny Image, Inc. is on an at-will basis. All conditions of employment, including without limitation your rate of pay, benefits, job title, and job duties, are subject to change at a j y time at the sole discretion of the company. After reading this letter and the enclosed Non-Disclosure and Non-Compete Agreement, please sign both documents and return them to us either prior to or when reporting to work for your first day. Keep the second set for your records. I am delighted that you will be formalizing your decision to join Destiny Image, Inc. I look forward to your arrival and the contributions I expect you will make to our organization. Should 'you have any questions prior to your arrival, please feel free to call me. it Sincerely, I Nathan E. Martin Chief Financial Officer Enclosure(s) I a and u derstand the terms set forth above and accept the offer of at-will employment. J??O 6 i1! Zo O Employee Signature Date Non-Disclosure & Non-Compete Agreement This agreement is made the 4TH day of JUNE , 2010 , by and between Destiny Image, Inc!. a Pennsylvania business corporation. and WILMER SINGLETON , employee. Non-Disclosure Agreement At no time while retained by Destiny Image, Inc., and at no time after the termination of employ employee use in any manner or disclose to any person the identities or lists of authors (whether , prospective), unpublished manuscripts or other works in progress, trade secrets. financial inform other confidential and/or proprietary information pertaining to Destiny Image, Inc., or its busine? operations, affairs or relationships with others. Non-Compete Agreement While employed by Destiny Image, Inc., and after termination (regardless of when and for what termination occurs) until the expiration of one (1) year after such termination, the employee sha with Destiny Image, Inc., directly or indirectly, either on his/her own behalf or as a partner, join officer, director, employer, employee, consultant, agent or in any other manner of capacity in cc any other persons by: (a) interfering with Destiny Image's business by soliciting, persuading or i author that then has an agreement or relationship with Destiny Image, Inc.; (b) persuading or Inc employee to resign employment with Destiny Image, Inc., or interfering or disrupting Destiny Irr relationship with its employees, representatives or agents, or soliciting or hiring any of Destiny I. employees, representatives or agents. r Employee Witness nent shall the :tual or tion or any es, eason such not compete venturer. inection with tuctng any cing any ge's age's y? ``?'' ?? ?' ?j 1"?, ??, ?' ?? ?1 ,, I? 1`?, ??` '? i :? ii I, ??, ,?I 1 `? '+ ?1 ''1 ;? 'I ?? lti ,, a t,4 ,' -', wordpartners.com WHOIS domain registration information from IMAGE NGI AVAILABLE 0 80a",RRk Current 1 & I INTERNET AG Registrar: CP Address: 74.208.161,198 (AMN & RIPE IP search) Lock Status: ok hapl/www networksolutions com/whois-search) purewordpartrlers com % The data in the WHOIS database of 161 Internet AG is provided by t 161 for information purposes, and to assist persons in obtaining % information about or related to a domain name registration record. % 161 does not guarantee its accuracy. By submitting a WHOIS query, % you agree that you •aill use this data only for lawful purposes and B under no circumstances, you will use this data to t (1) allow, enable, or otherwise support the transmission by e-mail % telephone, or facsimile of mass, unsolicited, commercial adver % solicitations to entities other than the data recipient's own % customers: or (2) enable high volume, automated, electronic processes that send t data to the systems of any Registry Operator or ICANN-Accredit t except as reasonably necessary to register domain names or moc $ registrations. % 161 reserves the right to modify these terms at any time. 4 By submitting this query, you agree to abide by this policy domain: PUREWORDPARTNERS.COM created: 15-Aug-2011 last-changed: 15-Aug-2011 reqistration-expiration. 15-Aug-2012 nserver nserver status registrant-firstname registrant-lastname registrant-streetl registrant-pcode: registrant-state: registrant-city registrant-ccode registrant-phone. registrant-fax. registrant-email -. admin-c-firstname admin-c-lastname: admin-c-streetl: admin-c-pcode admin-c-state admin-c-city. admin-c-ccode admin-c-phone admin-c-fax. admin-c-email tech-c-flrstname- tech-c-lastname: Lech-c-organization tech-c-streetl: tech-c-street2. tech-c-pcode. tech-c-state. tech-c-city: tech-c-ccode tech-c-phone: tech-c-fax tech-c-email bill-c-firstname bill-c-lastname: bill-c-organization bill-c-streetl. bill-c-5tre- 2 bill-c-pcode. bill-c-state. bill-c-city: bill-c-ccode: bill-c-phone. bill-c-fax. bill-c-email. ns5l.landl.com 217.160.80.164 ns52.landl.com 217.160.81.164 CLIENT-TRANSFER-PROHIBITED Wilmer Singleton 44 Turner Drive 11222 PA Fayetteville u5 +1.7175040026 +1.8882377143 Wilmersingleton@gmall.com Wilmer Singleton 44 Turner Drive 17222 PA Fayetteville US +1.7175040026 +1.8882377143 Wilmersingleton@gmail com Hostmaster ONEANDONE lal Internet Inc. 701 Lee Rd. Suite 300 19087 PA Chesterbrook u5 +1 8774612631 +1.6105601501 hostmaster@landl.com Hostmaster ONEANOONE 161 Internet Inc. 701 Lee Rd Suite 300 19087 PA Chesterbrook us +1.8774612631 +1.6105601501 hostmaster@landl.com 10/28/2011 4 09 PM Drdpartners.com WHOIS domain registration information from http://www.networksoIuhons.corn/whois-searctVpurewordpartners.com t See http://registrar. lunol. info for information about 1&1 Internet The previous uifonnation has been obtained either directly fiom the registrant or a registrar of the domain name other than Netw lrli Solutions Network Solutions, therefore, does not guarantee its accuracy or completeness. Show un.derlying regis.[ry data for. this record PROTECT YOUR BRAND. ABC IS HERE. 4 Fl S BE ADULT ABOUT IT Make an instant, anonymous offer to the current domain registrant Learn More Search Again Search again here. Search by either Domain Name e.g. networksolutions.com CP Address e.g. 205178187.13 10/28/2011 4 08 PM wordpartners corn WHOIS domain registration information from http://www netwcrksolutions corn/whois-seareF?purewordparhiers.coin 'I Get online today with our best deals' Call 1-877-81.1-0755 for a Network Solutions Sales Expert. ,f I Processing. i i 10/28/2011 4,08 PM b I? Dest4nY Dlm?"Aah® ® PUBLISHERS, MEDIA ENGINEERING 167 Walnut Bottom Road P.O. Box 310 Shippeasb l r PA 17257-0310 (71(7)532-3040 FAX 0717) 532-9291 I Internet: wVVA' C esttiiin01_niaae.cC To: Wilmer Singleton 14840 Hollowell Church Rd Waynesboro PA 17268 i? CEASE AND DESIST LETTER - BREACH OF NON-COMPETE AGREEM? ,ANT i ?l Introduction j III 1. It has been brought to our attention that you are forming a publishing entity and that you have been contacting individuals/authors that are under contract with Destiny Image. Such actions must stop immediately. Infraction 2. This Cease and Desist Letter concerns an issue that occurred sometime after your termination and the present. This is the first known occurrence of this type of infraction. 3. Your employment agreement with Destiny Image, which you signed on June 4", 2010 clearly states that ydu are under strict obligations not to compete with Destiny Image. If it is found that you are forming a publishing entity or that you have been contacting individuals/authors under contract without the permission of Destiny Image, you will be in material breach of this agreement Consequences 4. Because of the detrimental effects a breach of the non-compete agreement has on the business of Destiny !Image, you are hereby required to cease and desist any such unlawful activities. Failure to do so may result in the filing of?suit for a temporary restraining order, a preliminary and permanent injunction, damages, and any other remedy available at law or in equity. Joel D. Nori, Esq. ;,eneral Counsel, Destiny Image, Inc. FOUNDATIONALLY SPIRIT-FILLED - BIBLICALLY SOUND I'1 SPIRITUALLY INSPIRATIONAL Exh D Dest'iny Image© PUBLISHERS, MEDIA ENGINEERING June 4, 2010 Wilmer Singleton ADDRESS RE: Offer of Employment 167 Walnut Bottom Road P.O. BOX 310 Shippensl u fig, PA 17257-0310 (717) 532-3040 FAX (717) 532.9291 Internet: www.destinyimage.com Dear Wilmer: This letter confirms the verbal offer of employment made to you and explains the basic' framework around which your employment relationship with Destiny Image, Inc. will bed terms and conditions of your employment include the following: I o Start Date/Time: June 4, 2010 o Annualized Salary/ Hourly Rate: $26,000 based on a full time work load (payabl( weekly instalknents during your active employment) o Position Title: Acquisitions Agent built. The in bi- o Reports To: Dean Drawbaugh I? o Position Classification: Exempt I o Employee Benefits: i - Group medical, dental, vision insurance plans. j i - Group term life insurance plan (if enrolled in medical plan). - Vacation time up to 5 days the first year, accrued after successful completion of Introductory Period. - Paid Holidays, Personal Day - Access to 401 (k) Retirement Savings Plan (after successful completion bf one year of service). Details of these employee benefits will be provided at new employee orientation with Sharon Mort, Benefits Administrator on MONDAY, JUNE 7, at 9a. Please bring along documents to show your citizenship for Employment Eligibility requirements, and signed letter and agreement. 'SPEAKING TO THE PURPOSES OF GOD FOR THIS GENERATION AND FOR THE GENERATIONS TQICOME." Also enclosed you will find a Non-Disclosure and Non-Compete Agreement. This offer employment is contingent upon you signing this enclosed Agreement. Should you accept this offer of employment, the first ninety days of your employment with Destiny Image, Inc. will be considered your Introductory Period. The purpose of the Introductory Period is to give new employees the opportunity to demonstrate their ability to achieve a satisfactory level of performance and to determine whether their new position and Destiny Image, Inc. inlgeneral meet their expectations. This does not bind you to work for us for the 90-day period, nor does it bind us to maintain your employment for that same time. Your employment with us willlbe "at- will," which means that either you or we can terminate the employment relationship at arI y time, even during the Introductory Period. I This offer of employment, including the contents of this letter, shall in no event be constructed as an employment contract or any other promise of continuing employment, as employment with Destiny Image, Inc. is on an at-will basis. All conditions of employment, including without limitation your rate of pay, benefits, job title, and job duties, are subject to change at any, time at the sole discretion of the company. I After reading this letter and the enclosed Non-Disclosure and Non-Compete Agreement please sign both documents and return them to us either prior to or when reporting to work for,your first day. Keep the second set for your records. i? i I am delighted that you will be formalizing your decision to join Destiny Image, Inc. I look forward to your arrival and the contributions I expect you will make to our organization. Should you have any questions prior to your arrival, please feel free to call me. Sincerely, Nathan E. Martin Chief Financial Officer Enclosure(s) I I I? l a e r ad and a derstand the terms set forth above and accept the offer of at-will employment. 2_01 Employee Signature Date !? Non-Disclosure & Non-Compete Agreement This agreement is made the 4TH day of JUNE , 2010 . by and between Destiny Image, Inc., a Pennsylvania business corporation. and WILMER SINGLETON , employee. Non-Disclosure Agreement At no time while retained by Destiny Image, Inc., and at no time after the termination of employment shall the employee use in any manner or disclose to any person the identities or lists of authors (whether actual or prospective), unpublished manuscripts or other works in progress, trade secrets, financial information or any other confidential and/or proprietary information pertaining to Destiny Image, Inc., or its businesses, operations, affairs or relationships with others. Non-Compete Agreement While employed by Destiny Image, Inc., and after termination (regardless of when and for what r termination occurs) until the expiration of one ( I ) year after such termination, the employee shall with Destiny Image, Inc., directly or indirectly, either on his/her own behalf or as a partner, joint officer, director, employer, employee, consultant, agent or in any other manner of capacity in cor any other persons by: (a) interfering with Destiny Image's business by soliciting, persuading or in( author that then has an agreement or relationship with Destiny Image, Inc ; (b) persuading or indu employee to resign employment with Destiny Image, Inc., or interfering or disrupting Destiny Ima relationship with its employees, representatives or agents, or soliciting or hiring any of Destiny Im employees, representatives or agents. Employee Witness ison such of compete !nturer, ection with icing any ing any -'s ae's -c-oh tI5 lbit I i l 1 7 Desti'ny Image,,, PUBLISHERS, MEDIA ENGINEERING December 13, 2010 Dana Loch dana oc mail.com RE: Offer of Employment Dear Dana: 167 Walnut Bottom Road P.Oj BOX 310 ShippensburPA 17257-0310 (717 32-3040 FAX (i17) 532-9291 Internet: www.destinyimagexom This letter confirms the verbal offer of employment made to you and explains the basic framework around which your employment relationship with Destiny Image, Inc. will be terms and conditions of your employment include the following: o Start Date/Time: Dec. 13, 2010 / 8:30a ? Hourly Salary. SAMQt tGT (payable in 80-hour, bi-weekly installments during yo employment) F ¢? / `` 30,e4.)? ? 14. 4 Yl? ? Position Title: TITLE ? Reports To: Dean Drawbaugh o Position Classification: Non-Exempt o Employee Benefits- - Group medical, dental, vision insurance plans- - Group term life insurance plan (if enrolled in medical plan). - Vacation time up to 5 days the first year, accrued after successful comp Introductory Period. - Paid Holidays, Personal Day - Access to 401 (k) Retirement Savings Plan (after successful completion of service)- Details of these employee benefits will be provided at new employee orientation on 15, at 9a. built. The I? I? Jr active of one year Dec. "SPEAKING TO THE PURPOSES OF GOD FOR THIS GENERATION AND FOR THE GENERATIONS TO dONIE." Also enclosed you will find a Non-Disclosure and Non-Compete Agreement. This offer employment is contingent upon you signing this enclosed Agreement. Should you accept this offer of employment, the first ninety days of your employment V Image, Inc. will be considered your Introductory Period. The purpose of the Introducto to give new employees the opportunity to demonstrate their ability to achieve a satisfa( of performance and to determine whether their new position and Destiny Image, Inc. it meet their expectations. This does not bind you to work for us for the 90-day period, n bind us to maintain your employment for that same time. Your employment with us wil will," which means that either you or we can terminate the employment relationship at ; even during the Introductory Period. h Destiny Period is )ry level eneral does it e "at- y time, This offer of employment, including the contents of this letter, shall in no event be constructed as an employment contract or any other promise of continuing employment, as employment with Destiny Image, Inc. is on an at-will basis. All conditions of employment, including without limitation your rate of pay, benefits, job title, and job duties, are subject to change at any time at the sole discretion of the company. After reading this letter and the enclosed Non-Disclosure and Non-Compete Agreementl, please sign both documents and return them to us either prior to or when reporting to work fonyour first day. Keep the second set for your records. I am delighted that you will be formalizing your decision to join Destiny Image, Inc. I loi to your arrival and the contributions I expect you will make to our organization. Should) any questions prior to your arrival, please feel free to call me. Sincerely, i Nathan E. Martin1 G?wx Chief Financial Officer Enclosure(s) forward u have I have read and understand the terms set forth above and accept the offer of at-will employment. TDc,- L,--D CS, 12 is ( ?0i Employee Signature Date DDest in y Image,., PUBLISHERS, MEDIA ENGINEERING Non-Disclosure & Non-Compete Agreement ij 167 walnut Bottom Road P.O. BOX 310 Shippensbt>,g', PA 17257-0310 (717) 532-3040 FAX (717) 532-9291 Internet: www:destinyimagexom This agreement is made the 13th day of December, 2010 by and between Destiny Image, Inc., a Pennsylvania business corporation, and DANA LOCH, employee. Non-Disclosure Agreement At no time while retained by Destiny Image, Inc., and at no time after the termination of emplo, the employee use in any manner or disclose to any person the identities or lists of authors (whet or prospective), unpublished manuscripts or other works in progress, trade secrets, financial infi any other confidential and/or propnetary information pertaining to Destiny Image, Inc., or its b1 operations, affairs or relationships with others. Non-Compete Agreement While employed by Destiny Image, Inc., and after termination (regardless of when and for what such termination occurs) until the expiration of one (1) year after such termination, the employe compete with Destiny Image, Inc., directly or indirectly, either on his/her own behalf or as a par, venturer, officer, director, employer, employee, consultant, agent or in any other manner of caps connection with any other persons by: (a) interfering with Destiny Image's business by soliciting persuading or inducing any author that then has an agreement or relationship with Destiny Imag persuading or inducing any employee to resign employment with Destiny Image, Inc., or interfe disrupting Destiny Image's relationship with its employees, representatives or agents, or solicitii any of Destiny Image's employees, representatives or agents. Employee Witness lent shall r actual nation or nesses. eason shall not Ler, joint ity in ? Inc.; (b) Ong or g or hiring "SPEAKING TO THE PURPOSES OF GOD FOR THIS GENERATION AND FOR THE GENERATIONS TO COME." Destiny Image Employee Handbook Acknowledgement Form i I acknowledge that I have received a copy of Destiny Image Employee Handbook. I agree to read it thoroughly, including the statements in the foreword describing the purpose and eff ct of the Handbook. l I agree that if there is any policy or provision in the Handbook that I do not understand. I will seek cfairification from my supervisor. I understand that Destiny Image is an "at will" employer and as such employment with Destiny Imag i is not for a fixed term or definite period and may be terminated at the will of either party, with or without cause; and i? without prior notice. No supervisor or other representative of Destiny Image has the authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the above. In addition, I understand that this Handbook states Destiny Image policies and practices in effect o the date of publication. I understand that nothing contained in the Handbook may be construed as creating a promise of future benefits or a binding contract with Destiny Image for benefrts or for any other purpose. I also understand that these policies and procedures are continually evaluated and may be amended, modified or terminated at any time. Please sign and date this receipt and return it to the Human Resources Department. Date: ? 2 1 1 S Signature: Lo L ? ? c?a L ocV1 Print Name: 4 VERIFICATION I, Dean Drawbaugh, do hereby verify that I am authorized to make this Verification on behalf of Destiny Image Inc; that the foregoing document was prepared with the assistance and advice of counsel. Upon whose advice I have relied; that the document, subject to inadvertent or undiscovered errors, is based upon and therefore limited by the records and information still in existence, presently recollected and thus far discovered in preparation of this document and the prosecution of this case; and that subject to the limitations set forth herein, the averments of the document are true and correct to the best of my knowledge, information and belief. The language of this pleading is that of counsel. I understand that false statements made in the foregoing document are subject to the penalties of 18 Pa.C.S.A. `4904 relating to unworn falsifications to authorities. Dated: (f ('7 ('Dean Draw augh, General Manager, Destiny Image, Inc. (717) 5332-3040 CERTIFICATE OF SERVICE JOEL D. Nori, attorney for Destiny Image, Inc., certifies that a true and correct copy of the foregoing Second Amended Complaint was served on the following party by causing a copy to be delivered to Defendant's Attorney at: David T. Miller, Esq. Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 Counsel for Defendant Wilmer Singleton by Federal Express Mail, postage prepaid, on January 17, 2012. JOEL D. NORI ESQ. I.D. # 307248 Blair and Nori Law Group LLC 167 Walnut Bottom Road Suite 300 Shippensburg, PA 17257 717-729-6358 Attorney for Plaintiff Destiny Image Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Destiny Image Inc., 167 Walnut Bottom Road Shippensburg, PA 17257 Plaintiff, V. Wilmer Singleton 870 Woodlawn Drive Chambersburg, PA 17201 :'7 r re. F -< cr, No. 11-8285 r`' { Defendant. Civil Action JURY TRIAL DEMANDED DEFENDANT WILMER SINGLETON'S PRELIMINARY OBJECTIONS TO THE SECOND AMENDED COMPLAINT Introduction Defendant Wilmer Singleton, by and through his undersigned counsel, files the following Preliminary Objections to the Second Amended Complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028. The Second Amended Complaint in this action is a blatant attempt by Plaintiff Destiny Image, Inc. to leverage a questionably valid Non-Compete Agreement into a tool to intimidate Defendant Singleton into exiting the publishing industry, something that the Non-Compete Agreement, even if valid, does not require. The Plaintiff's clear goal is contrary to the terms of the Non-Compete Agreement Defendant executed, contrary to this Commonwealth's public policy, and contrary to the facts of this case even as alleged by Plaintiff. Indeed, the paucity of allegations in Plaintiff's third iteration of the Complaint lays bare the truth that Plaintiff cannot establish the elements of its claims. Despite its histrionic claims of "irreparable harm" and a need for equitable relief, Plaintiff has failed to identify a single action by Defendant that violates the terms of the Non- Compete Agreement. Indeed, the crux of Plaintiff's Complaint is that Defendant has violated the Non-Compete Agreement by contacting one or more unnamed authors who are under contract with Plaintiff. But, nowhere in the Complaint is there a simple recitation of the "who, what, and when" of this case. Plaintiff does not allege whom defendant contacted. Plaintiff does not allege what was said in that communication. Plaintiff does not allege when the communication occurred. These fatal deficiencies run throughout Plaintiff s Second Amended Complaint and render each count legally insufficient. For these reasons and others, as set forth in more detail below, Plaintiff s Second Amended Complaint should be dismissed. Preliminary Obiection I - Preliminary Obiection Pursuant to Rule 1028(4) as to Count I of the Complaint 1. Plaintiff s Complaint purports to assert a claim for breach of contract in Count I. 2. The purported claim for breach of contract is based on the alleged existence of a valid and enforceable Non-Compete Agreement. 3. The Complaint fails to set forth facts that establish that the Non-Compete Agreement is valid and enforceable. 4. Rather, the Complaint merely asserts the bald legal conclusion that the Non-Compete Agreement is valid. 5. For a Non-Compete Agreement to be valid in the Commonwealth of Pennsylvania the agreement must be incident to an employment relationship between the parties; the restrictions imposed by the covenant must be reasonably necessary for the protection of the employer; and the restrictions imposed must be reasonably limited in duration and geographic extent. Hess v. Gebhard & Co. Inc., 808 A.2d 912, 917 (Pa. 2002). 2 6. There are no facts set forth in the Complaint establishing that the restrictions imposed are reasonably limited in duration and geographic extent. 7. Indeed, the Non-Compete Agreement attached as Exhibit A to the Complaint contains no limitation in geographic extent; and there are no averments of facts in the Complaint that, if proven, would establish that the unlimited geographic scope of the Non-Compete Agreement is reasonable. 8. Accordingly, Count I, which purports to set forth a breach of contract action, fails to set forth facts that establish a valid and enforceable contract. 9. Absent averments of fact that establish a valid and enforceable contract between the parties, Count I fails to state a claim for which relief can be granted. 10. Wherefore, Defendant respectfully requests that Count I be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection II - Preliminary Obiection Pursuant to Rule 1028(4) as to Count I of the Complaint 11. Assuming arguendo that Count I of the Complaint establishes a valid and enforceable contract, Count I fails to state a claim for which relief can be granted because it fails to assert facts with sufficient specificity to establish that Defendant has breached the contract. 12. The Complaint asserts only the conclusion that "Defendant, as an agent, owner and/or employee of Pure Word Partners, LLC, contacted a number of Plaintiff's existing and prospective authors and clients, with which [sic] Defendant had dealt or communicated with while employed by Plaintiff, with the purpose of soliciting, inducing and persuading Plaintiff's existing and prospective authors to engage Defendant's services thereby breaching his Non-Compete Agreement with Plaintiff." 13. This conclusory allegation is insufficient to state a cause of action for breach of the Non- Compete Agreement attached to the Complaint as Exhibit A. 14. The Non-Compete Agreement, if valid, prohibits only certain types of contacts between Defendant and the authors under contract with Plaintiff. Specifically, the Non-Compete Agreement-if valid and enforceable-prohibits Defendant from "compet[ing] with Destiny Image, Inc.... by (a) interfering with Destiny Image's business by soliciting, persuading or inducing any author that then has an agreement or relationship with Destiny Image, Inc." Complaint Exhibit A at 3. 15. Accordingly, Plaintiff must aver facts that, if proven, would show that a prohibited communication occurred. 16. To do so, Plaintiff must aver facts establishing, at a minimum, the identity of the alleged "existing and prospective authors and clients, with which [sic] Defendant had dealt or communicated with while employed by Plaintiff' and whom Defendant allegedly contacted in a manner that is prohibited by the Non-Compete Agreement. 17. The Complaint fails to identify a single author who had an agreement or relationship with Plaintiff. 18. The Complaint fails to identify when, or even if, Defendant contacted such an author. 19. The Complaint fails to identify how the communication, if it occurred, was prohibited by the Non-Compete Agreement, if the agreement is valid. 20. These defects render Count I fatally defective. 21. Wherefore, Defendant respectfully requests that Count I be dismissed for failure to state a claim for which relief can be granted. 4 Preliminary Obiection III - Preliminary Obiection Pursuant to Rule 1028(4) as to Count I of the Complaint 22. Assuming arguendo that Count I of the Complaint establishes a valid and enforceable contract, Count I fails to state a claim for which relief can be granted because it fails to assert facts with sufficient specificity to establish that Defendant has breached the contract. 23. The Complaint merely asserts the bald conclusion that "Defendant actively contacted a number of Plaintiff's employees in an attempt to interfere or disrupt Plaintiff's employment relationship with its employees thereby breaching his Non-Compete Agreement with Plaintiff." 24. The Non-Compete Agreement, even if valid, does not prohibit all contact with individuals who are employed by Plaintiff. 25. Rather, the Non-Compete Agreement, if valid, prohibits "persuading or inducing any employee to resign employment with Destiny Image, Inc., or interfering or disrupting Destiny Image's relationship with its employees, representatives or agents, or soliciting or hiring any of Destiny Image's employees, representatives or agents." Complaint Exhibit A at 3. 26. There are no averments of fact in Count I of the Complaint that Defendant engaged in any specific act that is prohibited by the Non-Compete Agreement. 27. Specifically, Count I of the Complaint fails to identify a single Destiny Image employee who Defendant contacted in a manner that was prohibited by the terms of the Non-Compete Agreement attached as an Exhibit to the Complaint. 28. The Complaint fails to identify when any such contact occurred. 29. The Complaint fails to identify the content of any such communications. 30. Vague, general allegations of wrongdoing are insufficient to state a claim for breach of contract under Pennsylvania law. 31. Wherefore, Defendant respectfully requests that Count I be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection IV - Preliminary Obiection Pursuant to Rule 1028(4) as to Count II of the Complaint 32. Plaintiff's Complaint purports to assert a claim for breach of contract in Count II. 33. The purported breach of contract is based on the alleged existence of a valid and enforceable Non-Disclosure Agreement. 34. The Complaint fails to set forth facts that establish that the alleged Non-Disclosure Agreement is valid and enforceable. 35. Rather, the Complaint merely asserts the legal conclusion that the Non-Disclosure Agreement is valid. 36. For a Non-Disclosure Agreement to be valid in the Commonwealth of Pennsylvania, the agreement must be incident to an employment relationship between the parties; the restrictions imposed by the covenant must be reasonably necessary for the protection of the employer; and the restrictions imposed must be reasonably limited in duration and geographic extent. Hess v. Gebhard & Co. Inc., 808 A.2d 912, 917 (Pa. 2002). 37. There are no facts set forth in the Complaint establishing that the restrictions imposed are reasonably limited in duration and geographic extent. 38. Indeed, the Non-Disclosure Agreement attached as Exhibit A to the Complaint contains no limitation in geographic extent; and there are no facts alleged in the Complaint that, if proven, would establish that the unlimited geographic scope of the Non-Disclosure Agreement is reasonable. 6 39. Wherefore, Defendant respectfully requests that Count II be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection V - Preliminary Objection Pursuant to Rule 1028(4) as to Count II of the Complaint 40. Plaintiff's Complaint purports to assert a claim for breach of contract in Count II. 41. The purported breach of contract is based on the alleged existence of a valid and enforceable Non-Disclosure Agreement. 42. The Complaint fails to set forth averments of fact that, if proven, would establish a breach of the Non-Disclosure Agreement, if that agreement is valid. 43. Instead, the Complaint merely asserts the conclusion that Defendant has breached the Non- Disclosure Agreement. 44. For example, the Complaint baldly asserts that Defendant divulged proprietary information in the form of production processes, authors' names, and contact information. 45. The Complaint fails to aver facts that, if proven, would establish that Plaintiff's production processes are proprietary. 46. The Complaint fails to aver facts that, if proven, would establish that proprietary information regarding production processes, if any exists, was disclosed. 47. The Complaint fails to aver facts that, if proven, would establish that authors' names constitute proprietary information. 48. The Complaint fails to aver facts that, if proven, would establish that proprietary information regarding authors' names, if any exists, was disclosed. 49. The Complaint fails to aver facts that, if proven, would establish that authors' contact information constitutes proprietary information. 7 50. The Complaint fails to aver facts that, if proven, would establish that proprietary information regarding authors' contact information, if any exists, was disclosed. 51. Wherefore, Defendant respectfully requests that Count II be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection VI - Preliminary Obiection Pursuant to Rule 1028(4) as to Count III of the Complaint 52. Plaintiff s Complaint purports to assert a claim for breach of fiduciary duty in Count III of the Complaint. 53. Plaintiff fails to aver facts that, if proven, would establish the existence of a relationship between Plaintiff and Defendant that gave rise to a fiduciary duty. 54. Rather, plaintiff merely alleges that Defendant provided Plaintiffs proprietary information to another entity, Pure Word Partners, LLC. 55. Plaintiff fails to aver facts that, if proven, would establish that any information was disclosed to Pure Word Partners, LLC. 56. Plaintiff fails to aver facts that, if proven, would establish that any information disclosed to Pure Word Partners, LLC was proprietary. 57. Plaintiff fails to identify a single communication between Defendant and an existing and/or potential author and client of Plaintiff that was in violation of any duty owed by Defendant to Plaintiff. 58. Absent averments of facts establishing these elements, Plaintiff has failed to state a claim for breach of fiduciary duty. 59. Wherefore, Defendant respectfully requests that Count III be dismissed for failure to state a claim for which relief can be granted. 8 Preliminary Obiection VII - Preliminary Objection Pursuant to Rule 1028(4) as to Count IV of the Complaint 60. Plaintiff s Complaint purports to assert a claim for tortious interference of contract. 61. To assert a claim for tortious interference with contract, plaintiff must allege (1) the existence of a contractual relationship between the plaintiff and a third party; (2) purposeful action on the part of the defendant intended to harm the relationship; (3) the absence of privilege or justification on the part of the defendant; and (4) actual damages resulting from the defendant's conduct. 62. Plaintiff has failed to allege that Defendant acted with a purpose to harm the relationship between Plaintiff and Plaintiffs employee. 63. Wherefore, Defendant respectfully requests that Count IV be dismissed for failure to state a claim for which relief can be granted. Preliminary Obiection VIII - Preliminary Obiection Pursuant to Rule 1028(3) as to Plaintiffs Claim for Relief as to Counts I through III of the Complaint 64. In paragraphs 20, 26, and 32 of Counts I, II and IIl, respectively, Plaintiff conclusorily asserts that the actions of Defendant "have caused and will continue to cause Plaintiff irreparable harm" as a basis for equitable relief, including a request for an injunction. 65. This bald allegation is insufficient to support a request for an injunction. 66. Under Pennsylvania law, a pleading seeking the relief of an injunction must set forth the material facts from which the alleged irreparable harm arises. 67. Plaintiff fails to identify what type of harm will prove irreparable or even identify the who, what, when, and how of that alleged harm. 68. Indeed, Plaintiff, a publishing company, appears to be asserting (it is, of course, impossible to know for sure because of the deficiencies of Plaintiff s pleadings) that Defendant has appropriated authors who otherwise would have signed contracts with Plaintiff. Plaintiff 9 fails to name a single such author. Plaintiff fails to identify when that hypothetical author would have signed with Plaintiff. Plaintiff fails to identify the terms of an agreement it would have signed with this unnamed author in the event that this unnamed author indeed had been willing to sign a contract with Plaintiff. Plaintiff even fails to allege when Defendant contacted this author, much less that the author was under contract with Plaintiff. In short, Defendant is left guessing exactly who, what, when, and how? 69. Nowhere in the Second Amended Complaint does Plaintiff allege that a specific act by Defendant has caused or is causing a specified harm, much less an irreparable harm necessitating an injunction. 70. Defendant is entitled to know the nature of the claims against him. The Second Amended Complaint fails to provide this information. 71. Wherefore, Defendant requests that the claim for relief for an injunction be stricken or that Plaintiff be required to further amend its Second Amended Complaint to set forth the material facts upon which the asserted irreparable harm is grounded. Dated: February 6, 2012 Respectfully submitted, David T. Miller PA ID # 84433 Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 717.609.4930 (T) 888.277.8370 (F) david cr,mmlawfirmllc.com Attorney for Defendant Wilmer Singleton 10 Certificate of Service The undersigned certifies that a copy of the foregoing was served on the following party by First Class Mail, postage prepaid on February 6, 2012 to: Joel D. Nori, Esq. Blair Nori Law Group, LLC. 167 Walnut Bottom Road Suite 300 Shippensburg, PA 17257 Counsel for PlaintiDestiny Image Inc. David T. Miller 11 DESTINY IMAGE IN C. 167 Walnut Bottom Road, Shippensburg, PA 17257 Plaintiff, V. WILMER SINGLETON 870 Woodlawn Drive, Chambersburg, PA 17201-4818 COURT OF COMMON PLEAS ; CUMBERLAND COUNTY -o _ =a - 4- • r- tv No. 11-8285 -0 4.D-rj C ?' N RESPONSE TO PRELIMINARY OBJECITONS Defendant. ............................................................................................................................................. ............................................................................................................................................. RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO THE SECOND AMENDED COMPLAINT AND NOW, this 27th day of February, 2012, comes Destiny Image, Inc., the Plaintiff above named, by and through their attorney, Joel D. Nori Esq., of the Blair Nori Law Group, LLC., and replies to Defendant's Preliminary Objections to the Second Amended Complaint as follows: Introduction Despite Defendant's colorful descriptions of Plaintiff's Non-Compete agreement and Second Amended Complaint, Plaintiff's only goal in bringing suit is to protect the business interests of Destiny Image; interests which required significant investment to develop and over 25 years to establish. The Second Amended Complaint which lays out the facts and legal principles giving rise to Plaintiff's suit is reasonably tailored to meet the legal standard required to sustain the counts alleged. Furthermore, the relief sought by Plaintiff seeks only to abate the harm caused by an ex-employee who is attempting to capitalize on the relationships, skills, and proprietary information gained through Defendant's employment with Plaintiff contrary to the Non-Compete and Non-Disclosure agreements. Response to Preliminary Objection I 1. Paragraph 1 of Defendant's Preliminary Objections is admitted. 2. Paragraph 2 of Defendant's Preliminary Objections is admitted. 3. Paragraph 3 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Second Amended Complaint. Also, the Non-Compete agreement attached to the Second Amended Complaint as exhibit "A" speaks for itself. 4. Paragraph 4 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Second Amended Complaint. Also, the Non-Compete agreement attached to the Second Amended Complaint as exhibit "A" speaks for itself. 5. Paragraph 5 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 5 of Defendant's Preliminary Objections is denied. Moreover, the law in the Commonwealth is clear that the burden falls on the party who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful. Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 166 (Pa. 1955). 6. Paragraph 6 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Second Amended Complaint. Also, the Non-Compete agreement attached to the Second Amended Complaint as exhibit "A" speaks for itself. 7. Paragraph 7 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement is valid and enforceable in paragraphs 5-20 of the Second Amended Complaint. Also, the Non-Compete agreement attached to the Second Amended Complaint as exhibit "A" speaks for itself. Moreover, when a geographic scope is not specified in a Non-Compete agreement:, Pennsylvania courts will supply a reasonable scope. Davis & Warde, Inc. v. Tripodi, 420 Pa. Super. 450, 457 (Pa. Super. Ct. 1992); Quaker City Engine Rebuilders, Inc. v. Toscano, 369 Pa. Super. 573, 584 (Pa. Super. Ct. 1987). Therefore, even if the Court were to find that the Non-Compete agreement was not appropriately limited in geographic scope it would not be grounds for dismissal for failure to state a claim upon which relief can be granted. 8. Paragraph 8 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 8 of Defendant's Preliminary Objections is denied. 9. Paragraph 9 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 9 of Defendant's Preliminary Objections is denied. 10. Paragraph 10 of Defendant's Preliminary Objections is it request for relief to which no response is required. Response to Preliminary Objection II 11. Paragraph 11 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 12. Paragraph 12 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. U. Paragraph 13 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 13 of Defendant's Preliminary Objections is denied. 14. Paragraph 14 of Defendant's Preliminary Objections is admitted in part and denied in part. It is admitted that the type of contact alleged in paragraph 14 of Defendant's Preliminary Objections is prohibited by the Non-Compete agreement. However, it is denied that this is the only type of contact prohibited by the Non-Compete agreement. 15. Paragraph 15 of Defendant's Preliminary Objections is it legal conclusion to which no response is required. To the extent that a response may be required, paragraph 15 of Defendant's Preliminary Objections is denied. 16. Paragraph 16 of Defendant's Preliminary Objections is it legal conclusion to which no response is required. To the extent that a response may be required, paragraph 16 of Defendant's Preliminary Objections is denied. 17. Paragraph 17 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 18. Paragraph 18 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 19. Paragraph 19 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 20. Paragraph 20 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 20 of Defendant's Preliminary Objections is denied. 21. Paragraph 21 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection III 22. Paragraph 22 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 23. Paragraph 23 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 24. Paragraph 24 of Defendant's Preliminary Objections is admitted. 25. Paragraph 25 of Defendant's Preliminary Objections is admitted in part and denied in part. It is admitted that the type of contact alleged in paragraph 25 of Defendant's Preliminary Objections is prohibited by the Non-Compete agreement. However, it is denied that this is the only type of contact prohibited by the Non-Compete agreement. 26. Paragraph 26 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 27. Paragraph 27 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 28. Paragraph 28 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 29. Paragraph 29 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Compete agreement was breached by the Defendant in paragraphs 5-20 of the Second Amended Complaint. 30. Paragraph 30 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 30 of Defendant's Preliminary Objections is denied. 31. Paragraph 31 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection IV as to Count II of the Second Amended Complaint 32. Paragraph 32 of Defendant's Preliminary Objections is admitted. 33. Paragraph 33 of Defendant's Preliminary Objections is admitted. 34. Paragraph 34 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Second Amended Complaint. Also, the Non-Disclosure agreement attached to the Second Amended Complaint as exhibit "D" speaks for itself. 35. Paragraph 35 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Second Amended Complaint. Also, the Non-Disclosure agreement attached to the Second Amended Complaint as exhibit "D" speaks for itself. 36. Paragraph 36 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 36 of Defendant's Preliminary Objections is denied. Moreover, the law in the Commonwealth is clear that the burden falls on the party who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful. Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 166 (Pa. 1955). 37. Paragraph 37 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Second Amended Complaint. Also, the Non-Disclosure agreement attached to the Second Amended Complaint as exhibit "D" speaks for itself. 38. Paragraph 38 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement is valid and enforceable in paragraphs 21-26 of the Second Amended Complaint. Also, the Non-Disclosure agreement attached to the Second Amended Complaint as exhibit "D" speaks for itself. Moreover, when a geographic scope is not specified in a Non-Disclosure agreement, Pennsylvania courts will supply a reasonable scope. Davis & Warde, Inc. v. Tripodi, 420 Pa. Super. 450, 457 (Pa. Super. Ct. 1992); Quaker City Engine Rebuilders, Inc. v. Toscano, 369 Pa. Super. 573, 584 (Pa. Super. Ct. 1987). Therefore, even if the Court were to find that the Non-Disclosure agreement was not appropriately limited in geographic scope it would not be grounds for dismissal for failure to state a claim upon which relief can be granted. 39. Paragraph 39 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection V as to Count II of the Second Amended Complaint 40. Paragraph 40 of Defendant's Preliminary Objections is admitted. 41. Paragraph 41 of Defendant's Preliminary Objections is admitted. 42. Paragraph 42 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement was breached by the Defendant in paragraphs 21-26 of the Second Amended Complaint.. 43. Paragraph 43 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement was breached by the Defendant in paragraphs 21-26 of the Second Amended Complaint. 44. Paragraph 44 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Non-Disclosure agreement was breached by the Defendant in paragraphs 21-26 of the Second Amended Complaint. 45. Paragraph 45 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the Plaintiff's production processes are proprietary in paragraphs 21-26 of the Second Amended Complaint. 46. Paragraph 46 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant disclosed production processes in breach of the Non-Disclosure agreement in paragraphs 21-26 of the Second Amended Complaint. 47. Paragraph 47 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that authors' names constitute proprietary information in paragraphs 21-26 of the Second Amended Complaint. Moreover, customer lists have long been protected as confidential and trade secrets under Pennsylvania law. Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 623 (Pa. 1957). In the present case, Plaintiff's authors' names are analogous to a regular company's customer list and, as such, constitute proprietary information. 48. Paragraph 48 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant disclosed proprietary information in the form of authors' names in paragraphs 21-26 of the Second Amended Complaint. 49. Paragraph 49 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that authors' contact information constitutes proprietary information in paragraphs 21-26 of the Second Amended Complaint. Moreover, customer information which has been compiled represents a material investment of employers' time and money. Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 623 (Pa. 1957). Furthermore, customer data is entitled to protection independent of a nondisclosure contract. Id. At 623-24. Likewise, customer information is entitled to the same protection afforded to other trade secrets. West Mountain Poultry Co. v. Gress, 309 Pa. Super. 361, 366 (Pa. Super. Ct. 1982). In the present case, authors' contact information constitutes Plaintiff's customer information and, as such, is proprietary information. 50. Paragraph 50 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant disclosed proprietary information in the form of authors' contact information in paragraphs 21-26 of the Second Amended Complaint. 51. Paragraph 51 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection VI as to Count III of the Second Amended Complaint 52. Paragraph 52 of Defendant's Preliminary Objections is admitted. 53. Paragraph 53 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish the existence of a relationship from which a fiduciary duty arose in paragraphs 27-32 of the Second Amended Complaint. 54. Paragraph 54 of Defendant's Preliminary Objections is admitted in part and denied in part. It is admitted that Plaintiff alleged that Defendant provided proprietary information to Pure Word Partners, LLC in breach of his fiduciary duty to Plaintiff. However, it is denied that Defendant did not breach his fiduciary duty to Plaintiff in other ways. 55. Paragraph 55 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the fiduciary relationship was breached in paragraphs 27-32 of the Second Amended Complaint. 56. Paragraph 56 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the information disclosed was proprietary in paragraphs 27-32 of the Second Amended Complaint. 57. Paragraph 57 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that the fiduciary relationship was breached in paragraphs 27-32 of the Second Amended Complaint. 58. Paragraph 58 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent that a response may be required, paragraph 58 of Defendant's Preliminary Objections is denied. 59. Paragraph 59 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection VII as to Count IV of the Second Amended Complaint 60. Paragraph 60 of Defendant's Preliminary Objections is admitted. 61. Paragraph 61 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent a response may be required, paragraph 61 of Defendant's Preliminary Objections is denied. 62. Paragraph 62 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish that Defendant acted with a purpose to harm the relationship between Plaintiff and Plaintiff's employee in paragraphs 33-41 of the Second Amended Complaint. 63. Paragraph 63 of Defendant's Preliminary Objections is a request for relief to which no response is required. Response to Preliminary Objection VIII as to Plaintiffs Claims for Relief in the Second Amended Complaint 64. Paragraph 64 of Defendant's Preliminary Objections is admitted in part and denied in part. It is admitted that paragraphs 20, 26, and 32 of the Second Amended Complaint assert that Defendant has caused and will continue to cause Plaintiff irreparable harm, as a basis for equitable relief, including a request for an injunction. It is denied that the averments are "conclusorily" (sic) asserted or that this is the only form of relief sought by Plaintiff. 65. Paragraph 65 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent a response may be required, paragraph 65 of Defendant's Preliminary Objections is denied. 66. Paragraph 66 of Defendant's Preliminary Objections is a legal conclusion to which no response is required. To the extent a response may be required, paragraph 66 of Defendant's Preliminary Objections is denied. 67. Paragraph 67 of Defendant's Preliminary Objections is denied. Under Pennsylvania law, an injury is regarded as "irreparable" if it will cause damage which can be estimated only by conjecture and not by an accurate pecuniary standard. West Penn Specialty MSO, Inc. v. Nolan, 1999 PA Super 218, 737 A.2d 295, 299 (Pa.Super. 1999). Furthermore, "[e]xtant case law makes clear that the impending loss of a business opportunity or market advantage may aptly be characterized as an irreparable injury... for the purpose of a preliminary injunction." Kessler v. Broder, 2004 PA Super 200, 851 A.2d 944, 951 (Pa.Super. 2004). (Emphasis added) In the Second Amended Complaint Plaintiff clearly sets out facts sufficient to establish that the harm caused by Defendant is irreparable when Plaintiff alleged damage to its business opportunity and market advantage through the loss of goodwill. 68. Paragraph 68 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish Counts I-III in the Second Amended Complaint. By way of further answer, the speculative assertions in paragraph 68 of Defendant's Preliminary Objections mischaracterize the nature and breadth of the Non-Compete and Non-Disclosure agreements freely entered into by Defendant. 69. Paragraph 69 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish Counts I-III in the Second Amended Complaint. 70. Paragraph 70 of Defendant's Preliminary Objections is denied. Plaintiff set out facts sufficient to establish the nature of the claims asserted against Defendant in the Second Amended Complaint. 71. Paragraph 71 of Defendant's Preliminary Objections is a request for relief to which no response is required. Respect ykflnitted, by: JOE R ESO. 1. 307248 Blair and Nori Law Group, LLC., 167 Walnut Bottom Road, Suite 300, Shippensburg, PA 17257 717-729-6358 Dated: CERTIFICATE OF SERVICE JOEL, D. Nori, attorney for Destiny Image, Inc., certifies that a true and correct copy of the foregoing Response to Defendant's Preliminary Objections was served on the following party by causing a copy to be delivered to Defendant's Attorney at: David T. Miller, Esq. Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 Counsel for Defendant Wilmer Singleton by Federal Express Mail, postage prepaid, on February 27, 2012. /) JOEL D. NORI ESQ. I.D. # 307248 Blair and Nori Law Group LLC 167 Walnut Bottom Road Suite 300 Shippensburg, PA 17257 717-729-6358 Attorney for Plaintiff Destiny Image Inc. Destiny Image Inc., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. r i r'-. , DOCKET NO. 11-8285 Wilmer Singleton, Defendant CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE Please mark the above-captioned proceeding discontinued, settled and ended. By ORI ESQ. /j 1.DD. # 307248 Blair and Nori Law Group, LLC., 167 Walnut Bottom Road, Suite 300, Shippensburg, PA 17257 717-729-6358 Attorney for Plaintiff Date: December 19, 2012 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 19th day of December 2012, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: David T. Miller, Esq. Miller & Miller Law Firm LLC 950 Walnut Bottom Road Suite 15-209 Carlisle, PA 17015 Counsel for Defendant Wilmer Singleton r ?' c D. NORI ESQ. I. D. # 307248 Blair and Nori Law Group LLC 167 Walnut Bottom Road Suite 300 Shippensburg, PA 17257 717-729-6358 Attorney for Plaintiff Destiny Image Inc.