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HomeMy WebLinkAbout12-1137JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART, and COLT PLUMBING COMPANY d/b/a COLT PLUMBING SPECIALTIES, Defendants c-) :IN THE COURT OF COMMON PI w" H :CUMBERLAND COUNTY, PENN W 4A : cn r'- N CIVIL ACTION z W? >7 •• No.??-?/37 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford St., Carlisle, PA 17013 717-249-3166 or 800-990-9108 /03.7sp??Ay? 7/377 -urn rn " t:J a CJ p l -c JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. COMPLAINT Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts, by and through its attorneys, McNees Wallace & Nurick LLC, files the following Complaint for damages and injunctive relief against Defendants Kevin Hart and Colt Plumbing Company, d/b/a Colt Plumbing Specialties, and in support thereof, avers as follows: The Parties 1. Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts ("MPP) is a Texas corporation with its principal place of business in Fort Worth, Texas. MPP is authorized to and is doing business in the Commonwealth of Pennsylvania, by and through its authorized sales representatives. 2. MPP is engaged in the business of selling and distributing plumbing parts and maintenance repair parts. 3. MPP sells and distributes plumbing parts and maintenance repair parts in Pennsylvania. 4. Defendant Kevin Hart ("Hart") is an adult individual whose last known address is 581 Pleasant Hall Road, Carlisle, PA 17013. 1 5. Defendant Colt Plumbing Company, d/b/a Colt Plumbing Specialties ("Colt"), is a Pennsylvania company with a principal place of business at 1132 W. Trindle Road, Mechanicsburg, PA 17050. 6. Colt is also in the business of supplying plumbing parts and maintenance repair parts in Pennsylvania, and is a direct competitor of MPP. Venue 7. Pursuant to Pa.R.C.P. No. 1006, venue is appropriate in Cumberland County, Pennsylvania because the causes of action arise out of one or more transactions or occurrences that took place in Cumberland County. Factual Backaround 8. The plumbing parts and maintenance repair parts business is a highly competitive business in which one of the most valuable assets of a supplier such as MPP or Defendant Colt is its "book of business." 9. Information relating to the business, particularly that information which gives a company a competitive advantage in securing or retaining a customer's business, is a valuable property interest. 10. As valuable property, information relating to a plumbing supplier's book of business is closely guarded and is deemed to be proprietary and confidential. This information includes, but is not limited to, procedural or technical manuals, customer lists, customer account analyses (including, without limitation, accounts receivable, customer payment histories and customer account activity reports), price books, files and other documents or things. 2 11. Employees of MPP sell parts and services on its behalf and necessarily have access to and are privy to and knowledgeable about MPP's book of business and related confidential and proprietary information. As a condition to granting sales employees access to such confidential and proprietary information and to protect such information from unauthorized disclosure, sales employees are required to acknowledge the confidential and proprietary nature of this information and to agree to certain restrictions on the use and disclosure of such information. 12. By preserving confidential and proprietary information from unauthorized use and disclosure, MPP, like other companies in the sales business, enhances its ability to protect, retain and grow its business. Using these legitimate means to grow its business, MPP has developed a substantial book of business in Pennsylvania and throughout the United States. 13. On or about January 10, 2005, Hart accepted employment with MPP as a District Manager, with responsibility for selling plumbing parts and maintenance repair parts in the following regions: Pennsylvania - Center, Mifflin, Union, Snyder, Juniata, Perry, Huntington, Fulton, Franklin, Adams, Cumberland, York, Dauphin, Lebanon and Lancaster Counties; Maryland - Washington, Frederick, Carroll, Baltimore, Harford and Cecil Counties (Hart's territory). A true and correct copy of the map of Hart's sales territory as a District Manager is attached hereto as Exhibit "A." 14. As a part of, and contemporaneously with, his accepting employment as a District Manager for MPP, Hart executed a Non-Competition/Nondisclosure Agreement with MPP. A true and correct copy of this Non-Competition/Nondisclosure Agreement is attached hereto as Exhibit "B." 3 15. The Non-Competition/Nondisclosure Agreement acknowledges that Hart may receive or develop confidential information during his employment with MPP. Specifically, the Non-Competition/Nondisclosure Agreement provides, in relevant part: Employee acknowledges that the Company has agreed to provide him/her, and he/she shall receive from the Company, special training and knowledge. Employee acknowledges that included in the special knowledge to be received is the confidential information indentified in paragraph 2, below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement... . See Exhibit B, % 1. 16. The Non-Competition/Non-Disclosure Agreement defines "confidential information" as: ...any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit B, ¶ 2. 17. The Non-Competition/Non-Disclosure Agreement expressly prohibits Hart from disclosing any confidential information to which he had access during his employment with MPP. Specifically, the Agreement provides, in pertinent part: The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times 4 after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information... The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit B, 12. 18. The Non-Competition/Nondisclosure Agreement also includes a "Covenant Not To Compete" provision, which prohibits Hart from, inter alia, soliciting MPP's customers and clients for a period of one year after Hart's separation from employment with MPP: Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. See Exhibit B, ¶ 1. 19. The non-solicitation clause is further bolstered by a provision that allows for an extension of the prohibition against soliciting MPP's customers in the event of a breach. Specifically, the Non-Competition/Nondisclosure Agreement provides: 5 Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and its affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants... Further, during any period in which the Employee is in breach of the covenant not to compete specified in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. See Exhibit B, 13. 20. During his employment with MPP, Hart was responsible for selling plumbing parts and maintenance repair parts to customers within Hart's territory. 21. Hart's job responsibilities included solicitation of both new and existing customers for plumbing parts and maintenance repair parts in Hart's territory. 22. Due to the nature of his employment as a District Manager for MPP, during his employment with MPP, Hart had access to and was given confidential information of MPP, including information about MPP's operations, customers, and pricing. 23. This level of detailed information gave Hart a competitive advantage and helped to make him a successful salesman of MPP's products. 24. The described information is highly confidential, proprietary, and is not disclosed outside of MPP, and MPP has taken numerous steps to protect the confidentiality of its confidential information, including, but not limited to, requiring its employees, before being provided access to the information, to execute non- competition/non-disclosure agreements, limiting internal and external access to the confidential information, informing employees that certain information is confidential, 6 and otherwise taking steps to protect the dissemination and use of the confidential information. 25. Because of the nature of MPP's business, MPP made a significant investment in time and expenses in training Hart to work as a District Manager for MPP. 26. In addition, MPP made a significant investment in introducing Hart to customers that he could call upon while working for MPP. In doing so, MPP provided Hart with confidential information that was to be used in accordance with the Non- Competition/Nondisclosure Agreement with MPP. 27. The significant investment of MPP constitutes a protectable interest. 28. Hart resigned employment with MPP on February 25, 2011. 29. Although Hart is no longer employed by MPP, he remains bound by the provisions of the Non-Competition/Nondisclosure Agreement, which remains valid and enforceable. Hart's and Colt's Unlawful Conduct 30. Soon after his employment relationship ended with MPP, Hart accepted employment with North Eastern Supply, a direct competitor of MPP in selling plumbing parts and maintenance repair parts. 31. MPP suspected that Hart may have been calling on or otherwise soliciting sales from customers of MPP on behalf of and while he was employed by North Eastern Supply. 32. On April 28, 2011, MPP sent Hart a letter, reminding him that the terms of the Non-Competition/Nondisclosure Agreement with MPP were still in effect, and that his calling on customers of MPP on behalf of and while he was employed by North 7 Eastern Supply may have been a breach of the Non-Competition/Nondisclosure Agreement. 33. By letter dated May 3, 2011, MPP again reminded Hart of the effectiveness of, and his obligations under, the Non-Competition/Nondisclosure Agreement. In this letter, MPP specifically advised Hart that he is prohibited from selling any products, while an employee of his new employer, to the customers to whom he sold products to while in the employ of MPP. 34. Sometime in the Spring/Summer of 2001, Hart accepted employment with Colt. 35. MPP and Colt are direct competitors in the plumbing parts and maintenance parts business in Pennsylvania. 36. Hart is employed as a sales representative or similar capacity for Colt in Pennsylvania. 37. Hart has been soliciting MPP's customers in Pennsylvania on behalf of Colt. Specifically, Hart has been soliciting, on behalf of Colt, MPP's customers in the territory where Hart was assigned while working with MPP. 38. Initially, by letter dated August 24, 2011, Colt advised MPP that, to the best of its knowledge, Hart was not engaging in any activity that was in violation of the Non-Competition/Nondisclosure Agreement with MPP. A true and correct copy of this August 24, 2011 letter is attached hereto as Exhibit T." 39. By letter dated August 31, 2011, MPP responded to Colt's letter, refusing to submit its customer list to Colt as being confidential business information of MPP, and advising Colt of Hart's obligations under the Non-Competition/Nondisclosure 8 Agreement. A true and correct copy of this August 31, 2011 letter is attached hereto as Exhibit "D." 40. Despite MPP's letter of August 31, 2011, MPP was subsequently advised by two of its customers that Hart was soliciting the customers' business on behalf of, and while employed by, Colt, in violation of the terms of the Non- Competition/Nondisclosure Agreement. 41. On October 19, 2011, MPP sent Colt a letter, advising Colt of Hart's breaches of the Non-Competition/Nondisclosure Agreement in soliciting at least two of MPP's customers who Hart served while employed by MPP. A true and correct copy of this October 19, 2011 letter is attached hereto as Exhibit "E." 42. Specifically, MPP advised Colt that in September 2011, Hart had contacted Evangelical Hospital and Geisinger Medical Center, two of MPP's clients for whom Hart serviced while employed by MPP, in an attempt to solicit business for Colt. See Exhibit E. 43. By letter dated October 25, 2011, Colt advised MPP that it did not believe that Hart was violating the Non-Competition/Nondisclosure Agreement with MPP because Evangelical Community Hospital and Geisinger Medical Center are apparently customers of Colt. Colt claimed that Hart was not the salespersons assigned to these two accounts on behalf of Colt. A true and correct copy of this October 25, 2011 letter is attached hereto as Exhibit "F." 44. In this letter, Colt also advised MPP that it will not assign Hart to make any calls on accounts which he handled for MPP while he was employed by MPP. See Exhibit F. 9 45. Upon information and belief, Hart has continued to solicit, on behalf of Colt, MPP's customers and to otherwise violate the terms of the Non- Competition/Nondisclosure Agreement since Colt's receipt of the October 19, 2011 and Colt's alleged assurances to the contrary. 46. On January 25, 2012, MPP learned from its customer, Cornwall Manor, that Hart is his Colt representative, and that Hart had set up a meeting with Cornwall Manor during the week of January 25, 2012. Hart had serviced Cornwall Manor while he was employed by MPP. 47. On January 26, 2012, MPP was advised by its customer, John Clarke Elementary, that Hart has been calling John Clarke Elementary to set up sales calls appointments. Hart visited John Clarke Elementary in December 2011 to solicit sales on behalf of Colt. Hart serviced John Clarke Elementary while he was employed by MPP. 48. On January 27, 2012, MPP was advised that Hart was the Colt representative for Central Dauphin Schools, and that Hart had been soliciting sales from Central Dauphin Schools on behalf of Colt. Hart serviced Central Dauphin Schools while he was employed by MPP. 49. By his actions, Hart is capitalizing on the knowledge and goodwill he gained and/or developed while representing MPP, and is using or divulging MPP's trade secrets and other confidential and proprietary information to Colt, allowing it to compete unfairly with MPP. 10 50. Hart's actions in soliciting MPP's customers whom he served while he was employed by MPP are in violation of the Non-Competition/Nondisclosure Agreement with MPP. 51. Hart's actions have caused MPP damages, including loss of customers, loss of customer goodwill, loss of revenue, and substantial, yet incalculable other financial losses. 52. Hart's efforts to solicit MPP's customers, disclose MPP's confidential information, and enable Colt to compete unfairly against MPP is causing immediate and irreparable injury, for which there is no adequate remedy at law. Count I: Breach of Contract MPP v. Hart 53. MPP incorporates herein by reference Paragraphs 1 through 52, above, as if set forth in full. 54. In consideration for the commencement of his employment with MPP, Hart entered into a valid, binding Non-Competition/Nondisclosure Agreement with MPP. 55. In the Non-Competition/Nondisclosure Agreement, Hart agreed that he would not disclose MPP's trade secrets and other confidential and proprietary information to third parties. 56. The Non-Competition/Nondisclosure Agreement also contained a "Covenant Not to Compete," which prohibited Hart from soliciting MPP's customers whom Hart serviced while employed by MPP for one year after the termination of his employment with MPP. 57. MPP has a legitimate, protectable interest in, inter alia, the confidential information outlined above, including, but not limited to, the names and addresses of 11 any customers and clients of MPP, as that information has economic and competitive value to MPP. 58. MPP has taken significant measures to reasonably and fairly ensure that its confidential information, including its customer lists and customer information, remains confidential. 59. Since he became employed by Colt, Hart has been soliciting MPP's customers whom Hart serviced while employed by MPP. 60. Hart has breached and will likely to continue to breach the Non- Competition/Nondisclosure Agreement by soliciting sales from MPP's customers on behalf of Colt and by assisting Colt in unfairly competing with MPP. 61. Hart has also disclosed trade secrets and other confidential information regarding MPP's business and customers to enable Colt to misappropriate MPP's customers. 62. Despite the contractual provisions agreed to by Hart, he has refused to cease soliciting MPP's customers while he is employed by Colt, a director competitor of MPP. 63. As a direct and proximate result of Hart's breaches of the Non- Competition/Nondisclosure Agreement, MPP has been damaged, and will continue to be damaged, in that MPP will suffer decreased competitiveness and lost revenue, profits, and customer goodwill. 64. As a direct and proximate result of Hart's breaches of the Non- Competition/Nondisclosure Agreement, MPP has suffered and will continue to suffer irreparable harm in the form of lost customers and customer goodwill. 12 65. As a result of Hart's actions, MPP reasonably anticipates the loss of substantial, yet incalculable revenues which are expected to exceed the sum of $50,000.00. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Kevin Hart, and that Hart be enjoined, for one additional year, from using or disclosing any of Plaintiffs proprietary and confidential business information and from soliciting Plaintiffs customers, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with costs and such other relief as deemed appropriate by the Court. Count II: Tortious Interference with Contract MPP V. Colt 66. MPP incorporates herein by reference Paragraphs 1 through 65, above, as if set forth in full. 67. The Non-Competition/Nondisclosure Agreement constitutes a valid and binding written contract between MPP and Hart. 68. Colt, with full knowledge of the Non-Competition/Nondisclosure Agreement between Hart and MPP, intentionally and willfully interfered with that contract by inducing Hart to breach it in allowing him to soliciting MPP's customers. 69. Colt's actions are without justification or privilege. 70. As a result of Colt's actions, MPP has been damaged, and will continue to be damaged, in that MPP will suffer decreased competitiveness and lost revenue, profits and customer goodwill. 13 71. As a result of Colt's actions, MPP reasonably anticipates the loss of substantial, yet incalculable revenues which are expected to exceed the sum of $50,000.00. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Colt Plumbing Company, d/b/a Colt Plumbing Specialties, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with costs and such other relief as deemed appropriate by the Court. Count III: Violation of Pennsylvania Uniform Trade Secret Act MPP v. Hart 72. MPP incorporates herein by reference Paragraphs 1 through 71, above, as if set forth in full. 73. In the course of his employment with MPP, Hart was privy to MPP's confidential and proprietary business information, including its customer lists, customer contact information, pricing, and sales strategies. 74. This confidential information constitutes a "trade secret" under Pennsylvania's Uniform Trade Secrets Act because it is information that derives independent economic value to MPP from not being generally known to, and not being readily ascertainable by, other persons who can obtain economic value from its disclosure or use. 75. MPP invested substantial time, effort and money in the acquisition and further development of this confidential business information. 76. MPP's confidential business information is unique to MPP and would be of great value to competitors such as Colt. 14 77. Hart misappropriated MPP's confidential information by using that information to solicit business for MPP's competitor, Colt. 78. Hart's misappropriation and use of MPP's confidential information has caused, and will cause, substantial harm to MPP by placing MPP at a competitive disadvantage and by causing MPP to lose customers through unfair and improper use of its confidential business information. 79. Hart's misappropriation and use of MPP's confidential information is willful, malicious, and continuing. 80. MPP is entitled to attorneys' fees due to Hart's willful and malicious conduct. 12 Pa.C.S.A. § 5305. 81. As a result of Hart's actions, MPP reasonably anticipates the loss of substantial, yet incalculable revenues which are expected to exceed the sum of $50,000.00. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Kevin Hart, and that a permanent injunction be issued barring Hart from using or disclosing Plaintiffs confidential information, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with attorneys' fees, costs and such other relief as deemed appropriate by the Court. Count IV: Unfair Competition MPP v. Hart and Colt 82. MPP incorporates herein by reference Paragraphs 1 through 81, above, as if set forth in full. 15 83. The actions of Hart and Colt constitute unfair competition under the laws of the Commonwealth of Pennsylvania. 84. The actions of Hart and Colt are not privileged and have been willful and intentional. 85. The actions of Hart and Colt have caused, and is causing, substantial and irreparable harm to MPP, as well as substantial, yet incalculable, damages to MPP. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendants Kevin Hart and Colt Plumbing Company, d/b/a Colt Plumbing Specialties, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with injunctive relief, costs and such other relief as deemed appropriate by the Court. McNEES WALLACE & NURICK LLC B Y Schaun D. Henry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Attorneys for Plaintiff Dated: February 22, 2012 16 ?J V"ll/ sylvanii?.""g,-uj MAP OF PENNSYLVANIA'S COUNTIES s? I I E s Page 1 of 1 /z/2-7/0 67 ?IM 9 t ONMW L% .-1 "L-J 0"-,A wwwr .rx .- ur... WNW AUA~ ?+ w tie.wio?swr '"w ?s wm%*" ?r?tr was Lumm" CHEM .e ?weR wiwaw x rw isM MAN" --- •?- • r r . w r wrr. 1..x.1 ? - w • ? ? r ?w rr iiwirr?iwry1,1110 LJ ? ? 4 1 ennsylvania p ' iary@aol. com / last revised July 1997 !!ll'' cou /7i09?WS ?? ?,sru??iv C? !l If Al http://home.att.nett judiciary/Map.html AM I-OVjC,o0,A 12/27/2004 d 490:90 b0 La 08a j • Iv NONCOMPETITION / NONDISCLOSURE AGREEMENT Ufa This Non-competition / Nondisclosure Agreement (the "Agreement") is entered into this 10-? day o 2 , 20?, by and between JOHN W. GASPARINI, INC. d/b/a. MARK'S PLUG PARTS (hereinafter referred to as the "Company") and 4axic-- (hereinafter referred to as the "Employee") RECITALS A. Contemporaneously with the execution of the Agreement, Company has offered Employee a position with the Company as a District Manager (a Wa sales representative) and Employee has accepted that position. B. The Employee and the Company recognize that as a sales representative the Employee will necessarily have access to the Company's proprietary information, described below, and they further recognize that having had access to such information the Company will be damaged if the Employee ever uses the information in competition with the Company. C. Employee and the Company therefore desire to set forth in this Agreement the conditions under which Employee shall have access to such proprietary information and the limitations to be placed on Employee upon termination of the employment relationship. NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and promises contained herein, the parties hereby agree as follows: 1. Employee acknowledges that the Company has agreed to provide him/her, and he/she shall receive from the Company, special training and knowledge. -- -- mploy?e ac riowledg? hatiricludediri-the special-knowledge?o-be received is -"--- the confidential information identified in paragraph 2 below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement. Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. Employee represents to the Company that the enforcement of the restriction contained in this paragraph 1 would not be unduly burdensome to Employee and that in order to induce the Company to, employ the Employee, Employee further represents and acknowledges the Employee is willing and able to compete calling on other potential customers employee may develop other than clients or customers employee called on, while with the company. 1 2. The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information. For purposes of the immediately preceding sentence, persons property entitled to such information shall be (a) the board of directors of the Company and such officers, employees and agents of the Company, or any affiliate thereof, to whom such information is furnished in the normal course of business under established policies approved by the Company, and (b) such outside parties as are legally entitled to or are customarily furnished such information, including banking, lending, collection, accounting and data processing institutions or agencies who or which are provided such information in the normal course of business of the Company. The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. Upon any termination of the employment ---"relationship the Employee will delivei any and all of the foregoing-items-?o the - --- Company within 10 days. Samples, sample cases, sales rep catalogs, and items not confidential in nature will be billed to the sales rep if such items are not returned within 10 days, and will be deducted from any final compensation due. Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or paragraph 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and it affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants. Such right to an injunction shall be cumulative and in addition to, and not in lieu of, any other remedies to which the Company may show itself justly entitled. Further, during any period in which the Employee is in breach of the covenant not to compete specified in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. 4. In addition to the restrictions set forth in paragraphs 1 and 2 of this Agreement, Employee shall not while employed by the Company or upon the termination of the employment relationship and for one year thereafter either directly or indirectly (a) make known to any person, firm or corporation, the names and addresses of any of the customers of the Company or any other information pertaining to such persons, (b) call on, solicit or take away, or attempt to call on, solicit or take away any of the customers of the Company upon whom Employee called or with whom Employee became acquainted during Employee's employment by the Company or (c) recruit or hire or attempt to recruit or hire directly or by assisting others, any other employee of the Company or any of its affiliates. The covenants contained in this Agreement will be construed as ancillary to and independent of any other terms or conditions of Employee's employment by the Company and the existence of any claim or cause of action of Employee against the Company or any officer or director or shareholder of the Company, whether predicated on Employee's employment by the Company, the termination of that employment, this Agreement or otherwise, shall not constitute a defense against the enforcement by the Company of the covenants of the Employee contained in this Agreement. 6. The Employee and the Company agree that the limitations contained in paragraph 1 of this Agreement with respect to clients or customers, duration, and scope of activity are reasonable. However, if any court shall determine that the clients or customers, duration, or scope of activity of any restriction contained in this Agreement is unenforceable, it is the intention of the parties that such restrictive covenant set forth herein shall not thereby be terminated but shall be deemed - - -- ---- amended to the extent required to rendei if valiit and en orcea -Ie--" 7. The Employee represents and warrants to the Company that Employee is not a party to any agreement that in any way restricts, prohibits or prevents Employee from performing the duties of a sales representative for the Company in the geographic area described on Exhibit "A". WITNESS the execution hereof on the date and year first written above. JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS By: President ?%. ZA, 3 115 PENNSYLVANIA o a 0 z s 7 Z Y ? J a c 7/•? ? ?$ V' w ?` i ? r n $ • r 8 ; pp * Il ?6 ?o ? ? rr C • f g • ; • e o m Vffi g yg g n n 13 r?• S Q ° • n SA • i S • N ' Ej ? n n ° yD p,.? m :g g 9 i ?? ?, • ? ? ° "'111 ? k-. n p Sr n ? y MAD ? • 7f? " e33366... i$ • •• ?ip ury lG'? • n ? • $Oii 3 N $ s1P ?? F n ° A • o o • • ° d 2g R ??8 z ?n 4? AA ]3]SS a C a ? O ° ?, • i. y 3 3 °n a 4? 3 $ ? , ne? i 0 o ` ? ? N L? (i"? PLUMBING SPECIALTIES ' Plumbing & Heating Specialties • Replacement Parts & Tools 1132 W. Trindie Road • P.O. Box 957 • Mechanicsburg, PA 17050-0957 WHOLESALE DISTRIBUTOR August 24, 2011 Mark's Plumbing Parts 3312 Ramona Fort Worth, TX 76116-6428 Attn: Marvin L. Rubac, President Re. Kevin Joseph Hart Dear Mr. Rubac, Colt Plumbing Company is aware of the employment agreement that exists between Mark's Plumbing Parts and Mr. Kevin Hart. I can assure you that Colt will cooperate to the fullest extent possible in enforcing the terms of that agreement. To the best of my knowledge Mr. Hart is not engaging in any activity that would be considered a violation of his agreement with MPP. However, I have no knowledge of the accounts Mr. Hart called on while in the employ of MPP. Please send me a list of all. the accounts where MPP alleges a violation and I will make sure Mr. Hart is not assigned to any of those accounts. Sincerely, C? Robert C. Shaw President cc: Kevin J. Hart r} Phone: 717-697-4618 www.coltphlmbing.com Fax: 717-697.0951 roll Free: 800-233-1078 Email: mail@coltplumbing.com Toll-Free Fax: 800-537-3139 ?k,? LYNCH SCHWAB, PLLC ATTORNEYS AND COUNSELORS AT LAW 1441 KL)U 1 C LL SUITE 206 Additional offices BREWSTER, NEW YORK 10509 Syracuse White Plains L (914) 304-4353 f. (914) 304-4378 Louis U. Gasparini, Esq. Member Igo, 2arini vnchschwab corn August 31, 2011 Via Certified Mail. Return Reeeint Reauested #:7010-1060-0000-6040-7974 Colt Plumbing Specialties Attn: Mr. Bob Shaw 1132 W Trindle Road Mechanicsburg, PA 17055 Re: Kevin Joseph Hart Dear Mr. Shaw, This law firm represents Mark's Plumbing Parts (hereinafter "MPP). I am in receipt of your letter dated August 24, 2011. MPP will not be providing to you the names of any of its customers. As you are likely aware, this information is confidential and only within the knowledge of MPP and its employees. I would advise you that Mr. Hart is well aware of what customers he called upon during his tenure with MPP, and he is legally prohibited from violating his non- competition agreement. As a former District Sales Manager with MPP, Mr. Hart is aware of the prohibition of calling on MPP customers, or using any confidential and proprietary information to further his business with Colt Plumbing Specialties. I must remind you and Mr. Hart that in the event that MPP customers are improperly solicited or if trade secrets or other private data and information of MPP is used, we will immediately commence legal proceedings to protect the interests of MPP. In addition to any remedies available under applicable law and the Agreement with Mr. Hart, MPP will seek reimbursement of lost revenue of sales incurred as a direct result of any breach of the Agreement. MPP considers any intentional interference with its business contracts as improper, and will aggressively act to protect its interests, including legal proceedings in all jurisdictions where MPP has sustained damages. www.lynchschwab.com Page 2 of 2 August 31, 2011 Should you wish to discuss this matter further, please do not hesitate to contact the undersigned directly. Very truly yours, LYNCH SCHWAB, PLLC BY: LOUIS U. GASPARINI LUG/tb CC: Kevin Joseph Hart 35 Mount Zion Road York, Pennsylvania 17402 Marks Plumbing Parts www.I nclischwab.coin ?? ?? McNees Wallace & Nurick LLc 100 Pine Street • P4 Box 1166 • Harrisburg, PA 17108-1166 Tel: 717.232,8000 • Fax: 717,237,5300 October 19, 2011 VIA FACSIMILE AND FIRST CLASS MAIL Robert P. Shaw, President Colt Plumbing Specialties 1132 West Trindle Road P.O. Box 957 Mechanicsburg, PA 17050-0957 RE: Kevin Joseph Hart Dear Mr. Shaw: Schaun D. Henry Direct Dial: 717.237.5346 Direct Fax: 717.260.1702 shenry@mwn.com This law firm has been retained by Mark's Plumbing Parts (hereafter "Mark's" or the "Company") with respect to the breach of a non-compete and non-disclosure by your employee, Kevin Hart (Hart). By letter dated April 28, 2011, Lou Gasparini of Lynch Schwab, PLLC informed you that Hart was acting in violation of his agreement with the Company by contacting and soliciting the Company's customers with whom he became acquainted while employed by Mark's Plumbing. Mr. Shaw, in spite of your assurances to the Company, by letter dated August 24, 2011, that you would cooperate to the fullest extent possible in enforcing the agreement, Mark's Plumbing has learned that Hart has contacted at least two of the Company's customers on behalf of Colt Plumbing in violation of his non-compete agreement. Mr. Hart contacted Evangelical Hospital and Geisinger Medical Center in September 2011 in an attempt to solicit business for Colt. We request that you respond no later than October 26, 2011 with assurances that you have spoken to Hart about his unlawful actions on your behalf and have instructed him to take no action that would further violate his agreement. Hart knows full well those customers with whom he became acquainted while in Mark's employ. Reinforcement from you may be all that is needed here. When you return your correspondence to us, please return the enclosed acknowledgment signed by Hart. SCANNED l'rc (V4i 4 ,c) www.mwn.com Robert P. Shaw, President Colt Plumbing Specialties October 19, 2011 Page 2 Mark's would like nothing better than to settle this matter without further action. If the Company should learn that Hart continues to solicit its customers, it will have no choice to but to take immediate legal action. Hart's violation of his non-compete will cause irreparable harm to Mark's. We are certainly hopeful that this matter can be amicably put to rest. Very truly yours, McNEES WALLACE & NURICK LLC By -1.1 (i?? - Schaun D. Henry SDH/dlb Enclosure c: Lou Gasparini /? ???? ?; Ale i PLUMBING SPECIALTIES WHOLESALE DISTRIBUTOR October 25, 2011 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attn: Schaun D. Henry Re: Kevin Joseph Hart Dear Mr. Henry, Plumbing & Heating Specialties • Replacement Parts & Tools 1132 W. Trindle Road • P.O. Box 957 • Mechanicsburg, PA 17050-0957 The two accounts you mention in your letter of October l 9`h, Geisinger Medical Center and Evangelical Community Hospital are accounts that Colt has called on for many years. Mr. Hart is not the salesperson assigned to these accounts so there would be no financial incentive for him to solicit their business. If Mark's has lost business at either of these accounts that business has not gone to Colt Plumbing Company. Mr. Hart was hired with the understanding that he would not call on those accounts covered by any legally binding agreement with Mark's Plumbing Parts. I met with Kevin the afternoon of October 20th to remind him that I don't want him calling on any accounts that could be considered a violation of his non-compete agreement until the term of that agreement has expired. If there are any accounts on his current customer list that fall into this category, they will be removed. There are accounts Colt would like to assign to Mr. Hart. There are also customers who. have called asking Mr. Hart to call on them. In both situations he has declined. I would therefore bL surprised if sufficient evidence exists to support the contention that Mr. Hart has committed a material breech of his non-compete agreement. Sincerely, Robert C. President Shaw cc: Kevin J. Hart Phone: 717-697-4618 www.coltplumbing.com Fax: 717-697-0951 Toll Free: 800-233-1078 Email: mail@coltplumbing.com Toll-Free Fax. 800-537-3139 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 04904, relating to unsworn falsification to authorities, I, Marvin Rubac, hereby certify that I am the President of Mark's Plumbing Parts. In that capacity, I am authorized to make this Verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Dated: '%- Mark's mbing-Darts BY: Marvin Rubac Y ? PLUMBING SPECIALTIES WHOLESALE DISTRIBUTOR October 25, 2011 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attn: Schaun D. Hcnry Re: Kevin Joseph Hart Dear Mr. Henry, Plumbing & Heating Specialties • Replacement Parts & Tools 1132 W. Trfndle Road • P.O. Box 957 • Mechanicsburg, PA 17050-0957 The two accounts you mention in your letter of October l 91h, Geisinger Medical Center and Evangelical Community Hospital are accounts that Colt has called on for many years. Mr. Hart is not the salesperson assigned to these accounts so there would be no financial incentive for him to solicit their business. If Mark's has lost business at either of these accounts that business has not gone to Colt Plumbing Company. Mr. Hart was hired with the understanding that he would not call on those accounts covered by any legally binding agreement with Mark's Plumbing Parts. I met with Kevin the afternoon of October 20th to remind him that I don't want him calling on any accounts that could be considered a violation of his non-compete agreement until the germ of that agreement has expired. If there are any accounts on his current customer list that fall into this category, they will be removed. There are accounts Colt would like to assign to Mr. Hart. There are also customers who have called asking Mr. Hart to call on them. In both situations he has declined. I would trc. fore be surprised if sufficient evidence exists to support the contention that Mr. Hart has committed a material breech of his non-compete agreement. Sincerely, Robert C. President Shaw cc: Kevin J. Hart Phone: 717-697-4618 www.coitplumbing.com Fax. 717-697-0951 Toff Free: 800-233.107£' Email: mail@coltplumbing.com Toll-Free Fax: 800-537-3139 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 04904, relating to unsworn falsification to authorities, f, Marvin Rubac, hereby certify that i am the President of Mark's Plumbing Parts. In that capacity, I am authorized to make this Verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Dated: f,; Mark's mbing-Parts BY: z Marvin Rubac JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAN IA` c-> • C;:1 n ? •a N No /2 - //3 7 r°- v ?? . N C) O c o CIVIL ACTION 211 c.;s .: _J PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts, by and through its attorneys, McNees, Wallace & Nurick LLC, hereby moves for issuance of a preliminary injunction, pending trial on the merits, pursuant to the provisions of Pa. R. Civ. P. 1531 and, in support of its motion, avers as follows: 1. Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts ("MPP") requests preliminary injunctive relief to enforce the post-employment restrictions set forth in the Non-Competition/Non-Disclosure Agreement executed by Defendant Kevin Hart ("Hart"). Specifically, MPP seeks an injunction (1) prohibiting Hart from disclosing Plaintiffs confidential information, and (2) prohibiting Defendant Hart, for a period of one year from the entry of an injunction, from contacting or soliciting any person or entity whom he contacted, or sales personnel under his direction contacted, while he was employed by MPP. The agreement provides for a tolling of the restriction during the period of any breach. 2. Injunctive relief is proper where the party seeking such relief can demonstrate that (1) it have a clear right to relief; (2) there is a likelihood of immediate and irreparable harm which cannot be compensated by damages; (3) an injunction would restore the parties to the status quo as it existed prior to a defendant's wrongful 1 conduct; (4) a greater injury may result from denial of the injunction than from its being granted; and (5) the injunction is reasonably suited to abate such activity. John G. Bryant Co.. Inc. v. Sling Testinq and Repair, Inc., 369 A.2d 1164 (Pa. 1977). 3. Under Pennsylvania law, employment contracts containing general post- employment covenants not to compete are prima facie enforceable if they are reasonably limited as to duration of time and geographical extent, reasonably necessary to protect the employer without imposing an undue hardship on the employee, ancillary to an employment relationship and supported by consideration. Records Ctr.. Inc. v. Comprehensive Mgmt, Inc., 525 A.2d 433 (Pa. Super. 1987). 4. Simultaneously with this Motion, MPP has filed a Complaint in this Court. A true and correct copy of the Complaint is attached hereto and made a part hereof. 5. As averred in the Complaint, Defendant Hart, in connection with his employment with MPP, entered into a Non-Competition/Nondisclosure Agreement that contained a covenant that, for one year following the end of his employment, Hart would not contact or solicit any of MPP's customers who Hart serviced while employed by MPP. 6. As further averred in the Complaint, Hart, after voluntarily leaving the employ of MPP, and in violation of his contractual agreement with MPP, almost immediately began using and disclosing MPP's confidential and proprietary business information to MPP's competitors, and solicited MPP's customers whom he serviced while employed by MPP on behalf of Colt, a direct competitor of MPP, all the while assuring MPP that he was not soliciting customers. 2 7. As detailed in the Complaint, the non-competition covenant in Hart's Non- Competition/Nondisclosure Agreement is reasonably limited in duration and is reasonably necessary to protect MPP without causing undue burden on Hart. The non- competition covenant is also ancillary to an employment relationship and supported by consideration. 8. Hart's actions, if not enjoined, are likely to result in incalculable loss to MPP because of Hart's ability to use MPP's confidential and customer information, as well as the relationships built up by him while working on behalf of MPP, to compete unfairly with MPP. 9. For the reasons stated in the Complaint, unless Hart is enjoined from further breach of his Non-Competition/Nondisclosure Agreement, MPP will be irreparably harmed by: (a) loss of customers to a competitor of MPP; (b) loss of proprietary and unique confidential information that constitutes a significant competitive advantage for MPP; (c) loss of good will and loss of business reputation; and, (d) present economic loss, which is uncertain at this time, and future economic loss, which is presently incalculable. 10. MPP has no adequate remedy at law. WHEREFORE, Plaintiffs respectfully request that this Court order and decree that: A preliminary injunction issue to enjoin and restrain Defendant Kevin Hart, pending trial on the merits, from: (1) using or disclosing any confidential information of MPP; and (2) for a period of one year after the issuance of an injunction, contacting or 3 soliciting any customer of MPP of whom Defendant Hart earned or with whom he had contact while employed by Plaintiff. McNEES WALLACE & NURICK LLC By Schaun D. Henry I.D. No. 80597 Kimberly A. Selemba I. D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Attorneys for Plaintiff Dated: February 22, 2012 4 JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff vs. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, : Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW c')s NO. 12-1137 CIVIL _0= r7t03 cn ?" ?G IN RE: PRELIMINARY INJUNCTION 4 ORDER AND NOW, this Z y' day of February, 2012, hearing in the above-captioned -n rn rV rv N cn matter is set for Thursday, March 1, 2012, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Hess, P. J. ? Shaun D. Henry, Esquire For the Plaintiff Kevin Hart 0"P Aed Colt Plumbing Company ?? M 4 la aka /W Defendants <7 , :rlm Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. GASPARINI, INC. IN THE COURT OF COMMON PLEAS d/b/a MARK'S PLUMBING PARTS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION - LAW - r-, NO. 2012-1137 C ) C= N KEVIN HART and COLT PLUMBING -n COMPANY, d/b/a COLT PLUMBING UD - r SPECIALTIES Defendant ?-`' <c- ?'-' -?= ?-, ZX -, c MOTION FOR PROTECTIVE ORDER -- Colt Plumbing Company, d/b/a Colt Plumbing Specialties, Defendant in the above matter, by its attorneys, Martson Law Offices, sets forth the following Motion for Protective Order pursuant to Pennsylvania Rule of Civil Procedure 4012 : 1. The above captioned action involves the enforcement of a Non-Competition/Non- Disclosure Agreement (Agreement) that Defendant Kevin Hart entered into with the Plaintiff. 2. In conjunction with the filing of a Complaint, the Plaintiff has also filed a Motion for a Preliminary Injunction. 3. A hearing is scheduled on the Motion for Preliminary Injunction in Courtroom No. 4 of the Cumberland County Courthouse on Thursday, March 1, 2012, at 2:00 p.m. 4. Plaintiff's counsel has issued a Subpoena to Attend and testify at the mentioned hearing to Robert C. Shaw who is President of Colt Plumbing Company. A copy of said Subpoena is attached hereto and marked Exhibit `A'. 5. The Subpoena issued to Mr. Shaw directs that he bring with him "Any and all documents, records, and/or accounts referencing or referring to any entity, individual, business, corporation or any other customers or clients for which Kevin Hart had served, solicited, and /or performed work for while being employed with Colt Plumbing Company from February 2011 through the present." 6. Counsel for the Plaintiff has also issued a Subpoena to defendant Kevin Hart to appear and testify at the mentioned hearing. A copy of said Subpoena is attached hereto and marked Exhibit `B'. 7. The Subpoena issued to Mr. Hart requires Mr. Hart to bring to the hearing "Any and all documents, records, and/or accounts referencing or referring to any entity, individual, business, corporation or any other customers or clients for which you have served, solicited, and/or performed work for while being employed with Colt Plumbing Company from February 2011 through the present." 8. The information and documents requested to be brought to the hearing in both Subpoenas would disclose customer lists of Colt Plumbing and is information which is confidential and a proprietary secret of Colt Plumbing. 9. Plaintiff itself has acknowledged that customer lists are confidential information and Plaintiff refused to provide a listing of its customers to Colt Plumbing when Colt Plumbing requested such information in an effort to insure that Defendant Hart did not violate any provisions of his Agreement with Plaintiff (see August 31, 2011 letter from Plaintiff's counsel to Colt Plumbing which is attached hereto and marked Exhibit "C'). 10. The main issue in this case is whether Defendant Kevin Hart solicited or did business with customers while working with Colt Plumbing and that some of those customers were entities that Hart was prohibited from soliciting or doing business with as a result of the Agreement. It. In order for this litigation to proceed without unnecessarily disclosing confidential information of customer lists of the Plaintiff or customer lists of Colt Plumbing, this Court should conduct an in camera inspection of a listing of customers provided by Plaintiff that Plaintiff suggests Defendant Hart is prohibited under the Agreement from soliciting. The Court should compare that list to a list of customers provided by Colt Plumbing which indicates the names of the customers that Defendant Hart solicited while in the employ of Colt Plumbing. The Court may, on its own, determine the names of specific customers who appear on both lists, and those names could then be disclosed to both parties. 12. The undersigned attempted to speak with Plaintiff's counsel to determine if he concurred with this Motion. Plaintiff's counsel was unavailable when contacted by the undersigned. Wherefore, Defendant Colt Plumbing Company requests this Honorable Court to quash the mentioned Subpoenas issued to Kevin Hart and Robert C. Shaw and to order the disclosure of customer lists by the Plaintiff and Defendant Colt Plumbing for an in camera inspection by the Court. Dated: February 29, 2012 , Hubert X. Gilroy, qu Martson Law Offi es 10 East High Stre t Carlisle, PA 17013 (717) 243-3341 ID #29943 Attorney for Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. No. 12-1137 KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants SUBPOENA TO ATTEND AND TESTIFY TO: COLT PLUMBING COMPANY, Robert C. Shaw President 1132 W Trindle Road Mechaniesbur PA 17050 You are hereby ordered to come to the Cumberland County Courthouse, 1 Courthouse Square, Courtroom #4, Carlisle, PA on March 1, 2012 at 2:00 p.m. to testify on behalf of Plaintiff in the above case, and to remain until excused. 2. And bring with you the following: Any and all documents, records, and/or accounts referencing or referring to any entity, individual, business, corporation or any other customers or clients for which Kevin Hart had serviced, solicited, and/or performed work for while being employed with Colt Plumbing Company from February 2011 through the present. If you fail to attend or produce documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Requested by: Schaun D. Henry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Attorneys for Plaintiff Dated: IDS L)v.ry U( „? By ct,v; ll 04e Prothonotary Seal of the Court By EXHIBIT h From:Colt Plumbing To:7177613015 02/28/2012 15:01 7N00 '? WO-de ///("?11_?'.f.. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN W, GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. No. 12-1137 KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants UBPQF A 0 ATTEND AND TEST 0302 P.001/001 TO: XEVIN HART, 581. Pleasant Hall Road, Carlisle. PA 17013 1. You are hereby ordered to come to the Cumberland County Courthouse, 1 Courthouse Square, Courtroom #4, Carlisle, PA on March 1, 2012 at 2:00 p.m. to testify on behalf of Plaintiff In the above case, and to remain until excused. 2. And bring with you the following: Any and all documents, records, and/or accounts referencing or referring to any entity, individual, business, corporation or any other customers or clients for which you have serviced, solicited, and/or performed work for while being employed with Colt Plumbing Company from February 2011 through the present. If you fall to attend or produce documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment, Requested by: Schaun D, Henry LD. No, 80597 Kimberly A. Selemba I.D, No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Attorneys for Plaintiff Dated: 64, "ri d ? -) 61-2 Sea) of the Court By ?Z? U,d 'it>, &_e rl Prothonotary B -- Deputy Prothonotary EXHIBIT ?,1 LYNCH SCHWAB, PLLC ATTORNEYS AND COUNSELORS AT LAW 1441 ROUTE 22 SUITE 206 Additional offices Syracuse BREWSTER, NEW YORK 10509 white Plains t. (914) 304-4353 f. (914) 304-4378 Louis U. Gasparini, Esq. Member jg;g ?pari n i (atvnctiS&t1L?"sd1E,.Ctllll August 31, 2011 Via Certified Mail, Return Receipt Requested 4:7010-1060-0000-6040-7974 Colt Plumbing Specialties Attn: Mr. Bob Shaw 1132 W Trindle Road Mechanicsburg, PA 17055 Re: Kevin Joseph Hart Dear Mr. Shaw, This law firm represents Mark's Plumbing Parts (hereinafter "MPP). I am in receipt of your letter dated August 24, 2011. MPP will not be providing to you the names of any of its customers. As you are likely aware, this information is confidential and only within the knowledge of MPP and its employees. I would advise you that Mr. Hart is well aware of what customers he called upon during his tenure with MPP, and he is legally prohibited from violating his non- competition agreement. As a former District Sales Manager with MPP, Mr. Hart is aware of the prohibition of calling on MPP customers, or using any confidential and proprietary information to further his business with Colt Plumbing Specialties. I must remind you and Mr. Hart that in the event that MPP customers are improperly solicited or if trade secrets or other private data and information of MPP is used, we will immediately, commence legal proceedings to protect the interests of MPP. In addition to any remedies available under applicable law and the Agreement with Mr. Hart, MPP will seek reimbursement of lost revenue of sales incurred as a direct result of any breach of the Agreement. MPP considers any intentional interference with its business contracts as improper, and will aggressively act to protect its interests, including legal proceedings ill al l jurisdictions where MPP. has sustained damages. Nyww.lynchschwab.com EXHIBIT ;?4 L r? Page 2 of 2 August 31, 2011 Should you wish to discuss this matter further, please do not hesitate to contact the undersigned directly. Very truly yours, LYNCH SCHWAB, PLLC BY: LOUIS U. GASPARINI LUG/tb CC: Kevin Joseph Hart 35 Mount Zion Road York, Pennsylvania 17402 Marks Plumbing Parts I -'N }i mN.Ny.I ncliseIimit).coin Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS, Plaintiff vs. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2012-1137 PRAECIPE L ) C ?rn ? r- =C:, r,1 N N w -rl M --+ca TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of Martson Law Offices and Hubert X. Gilroy, Esquire as attorney for Defendant Colt Plumbing Company d/b/a Colt Plumbing Specialties. Dated: February JL '2012 Hubert X. Gilro , Esquire Martson Dear rff Williams Otto Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 (717) 243-3341 ID #29943 Attorney for Defendant JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION KEVIN HART, and COLT PLUMBING COMPANY d/b/a COLT PLUMBING SPECIALTIES, Defendants : NO. 12-1137 AFFIDAVIT OF SERVICE OF COMPLAINT UPON KEVIN HART 00 cp Ac= : C AFFIDAVIT State of Pennsylvania ) ) SS: County of Dauphin ) Before me the subscribers personally appeared Ma B. Kerns to me known, being duly sworn according to law, doth depose and say on February 23, 2012 @ 12:29 p.m., I served Kevin Hart, 581 Pleasant Hill Road, PA 17013, a Notice, Complaint, Preliminary Injunction and Brief in Support of Plaintiff's Motion for Preliminary Injunction, in the matter of Cumberland County, Pennsylvania Civil Action No. 12-1137; John W. Gasparini, Inc. d/b/a Mark's Plumbing Parts, v. Kevin Hart, and Colt Plumbing Company d/b/a Colt Plumbing Specialists, by handing these documents to Kevin Hart personally. And further deponent sayeth not. Mary B. .?rns 5235 N. Front St. Harrisburg, PA 17110 Sworn and subscribed before me this p day of 2012 Notary lic MMte'MnNWEALTH OF PENNSYLVANIA Notarial Seal Wendy K Johnston, Notary Public Susq^.se:haona Twp., Dauphin County my (omrnission Expires Oct. 24, 2013 , . „,, ,s a { ;-)rsation of Notaries JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART, and COLT PLUMBING COMPANY d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CL7 CIVIL ACTION C'r co ; r-;r: E 7 =a :r--n D CD NO. 12-1137 a AFFIDAVIT OF SERVICE OF COMPLAINT UPON COLT PLUMBING COMPANY AFFIDAVIT State of Pennsylvania ) ) SS: County of Dauphin ) Before me the subscribers personally appeared Mary B. Kerns to me known, being duly sworn according to law, doth depose and say on February 23, 2012 @ 11:32 p.m., I served Colt Plumbing Company d/b/a Colt Plumbing Specialties, a Notice, Complaint, Preliminary Injunction and Brief in Support of Plaintiff's Motion for Preliminary Injunction, in the matter of Cumberland County, Pennsylvania Civil Action No. 12-1137; John W. Gasparini, Inc. d/b/a Mark's Plumbing Parts, v. Kevin Hart, and Colt Plumbing Company d/b/a Colt Plumbing Specialists, by handing these documents to Donna Beers, Administrative Assistant, who accepted service on behalf of Colt Plumbing Company d/b/a Colt Plumbing Specialties. And further deponent sayeth not. Mary B., rns 5235 N. Front St. Harrisburg, PA 17110 Sworn and subs i ed before me this 271 , day of 2012 Notary lic COMMONWEALTH OF PENNSYLVANIA ?- Notarial Seal Wendy M. Johnston, Notary Public Susquehanna Twp., Dauphin County My Commission Expires Oct. 24, 2013 Member. Per!nw:•ania Association of Notaries Johnson, Duffie, Stewart & Weidner By: Wade D. Manley I.D. No. 87244 301 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 717-761-4540 wdm@jdsw.com n {' THE r r. RO ,'1? J rs 'i 2012 MAR I FM 1: 45 Attorneys for Cl D COUNT Kevin Hart PENN YLVAS A JOHN W. GASPARINI, INC., d/b/a, MARK'S PLUMBING PARTS, Plaintiffs V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-1137 CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary of Cumberland County: Kindly enter my appearance on behalf of Defendant, Kevin hart, in the above-captioned action. Respectfully submitted, Johnson', Duffle, Stewart & Weidner By: / ?r Wade D. Manley, Esquire Attorney I.D. No. 87244 301 Market Street Lemoyne, Pennsylvania 17043 717-761-4540 wdm@jdsw.com Attorney for Defendant, Kevin Hart CERTIFICATE OF SERVICE AND NOW, this 1St day of March, 2012, the undersigned does hereby certify that he did this date serve a copy of the foregoing Praecipe for Entry of Appearance upon the other parties of record by hand delivery and causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Schaun Henry, Esquire McNees Wallace 100 Pine Street PO Box 1166 Harrisburg, PA 17101 Counsel for Plaintiffs Hubert X. Gilroy Martson Deardorff 10 East High Street Carlisle, PA 17013 Counsel for Colt Plumbing Co. JOHNSON, DUFFIE, STEWART & WEIDNER By:_ ? ?Xw Wade D. Ma ley :484465 COMMONWEALTH OF PENNSYLVANIA- l3NOTAt COUNTY OF CUMBERLAND , -r- PM I ; JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants No. 12-1137 PROOF OF SERVICE ER i, 'ws D C 0 U N T Y I, Alicia Kogut, Paralegal, declare under penalty of perjury under the laws of the United States of America that on February 29th 2012, 1 served the Subpoena to Attend and Testify directed to Dyson Pfleegor by leaving the Subpoena with HR Director, Marcia Cooney , located at Evangelical Community Hospital, Lewisburg PA I declare that the foregoing information contained in this Proof of Service is true and correct. Dated: February 29, 2012 Sworn and subscribed to Before me this 29th day Of February 2012 J. COMMONWEALTH OF PENNSYLVANIA J Notarial Seat Michele S. Beery, Notary Public City of Harrisburg, Dauphin County My Commission Expires Jul 6 2014 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants • C,Cf ^,;,rcw ter. ? -fi 12-1137 No . :=C :) PROOF OF SERVICE I, en ?. P declare under penalty of perjury under the laws of the United States of America that on February ?-3 2012, 1 served the Subpoena to Attend and Testify directed to Kevin Hart, by leaving a the Subpoena with / i 6-U i ,, ?A qr C located at eC4 scat N Mme( I declare that the foregoing information contained in this Proof of Service is true and correct. Dated: February 28, 2012 SWor, A su-bscr?bPd ,Ore me ` *'11*5 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Michele S. Heery, Notary Public City of Harrisburg, D'uphiy County My Commission Expires July 6, 2014 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND = "= r CIS F CD ; INC. JOHN W. GASPARINI c =? , , d/b/a MARK'S PLUMBING PARTS, c? >C--7 -v n: CD ir-- - Plaintiff ? -:7 ?,-t " C V. ; No. 12-1137 KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants PROOF OF SERVICE A A3 i , declare under penalty of perjury under the laws of the I, -N United States of America that on February 2-S 2012, 1 served the Subpoena to Attend and Testify directed to Robert C. Shaw, President of Colt Plumbing Company, by leaving a the Subpoena with r,vle ?? ©nnrti located at ) I Sq I,.. T(-, I declare that the foregoing information contained in this Proof of Service is true and correct. Dated: February 28, 2012 Sworn ? ??xr?? ?'D b2?o re vy) S D I a a` 0f ?a4-a (y01 COMMONWEALTH OF PE=NNSYLVANIA Notarial Seai Michele S. Beery, Notary Public City of Harrisburg, Dauphin County My Commission Expires )ul 6, 2014 Hubert X. Gilroy, Esquire s rrnnCU =X: M MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER' MARTSON LAW OFFICES -tom. r .U I.D. 29943 , a> 10 East High Street =r. =-.. Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. GASPARINI, INC. IN THE COURT OF COMMON PLEAS d/b/a MARK'S PLUMBING PARTS, CUMBERLAND COUNTY, PENNSYLV ANIA Plaintiff VS. CIVIL ACTION -LAW NO. 2012-1137 KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES Defendant PRELIMINARY OBJECTIONS Colt Plumbing Company, by its attorneys, Martson Law Offices, sets forth the following in support of it's Preliminary Objections to the Complaint in accordance with Pennsylvania Rule of Civil Procedure 1028: 1. This case arises from a Non-Competition/Nondisclosure Agreement (Agreement) executed between Defendant Kevin Hart (Hart) and Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts (Mark's). 2. In summary, the Complaint alleges that Hart executed the Agreement while previously employed with Hart, and that Hart is now employed with Defendant Colt Plumbing Company d/b/a Colt Plumbing Specialties (Colt) and Hart is violating the Agreement. 3. Count IV of the Complaint at page 15 (paragraphs 82 through 85) raises a claim on behalf of Mark's for "Unfair Competition" against both Hart and Colt. 4. The allegations in the Complaint suggest that Hart has violated the Agreement by soliciting sales from customers of Mark's and suggests that Colt intentionally and willfully interfered with. the contract between Hart and Mark's by inducing Hart to breach the Agreement and allowing him to solicit Mark's customers. 5. To assert a claim for Unfair Competition, the facts plead must suggest that the public is likely to be deceived, that there is action by the Defendant that would create confusion between that of the Defendant's goods or business and the Plaintiff's, or that customers are mislead as to the identity, source or origination of any goods or services. 6. The facts as alleged in the Plaintiff's Complaint do not set forth a cause of action of Unfair Competition against Colt, and Colt demurrers to Count IV of the Complaint and asks the Court to dismiss Count IV as it is in violation of Pennsylvania Rule of Civil Procedure 1028(a)(4). Wherefore, Defendant Colt requests this Honorable Court to dismiss Count IV of the Complaint. Dated: March ? '2012 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 (717) 243-3341 ID #29943 Attorney for Defendant Schaun D. Henry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants CC <c` LL ^T-• - rv Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 12-1137 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford St., Carlisle, PA 17013 717-249-3166 or 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 S. Bedford St., Carlisle, PA 17013 717-249-3166 or 800-990-9108 McNEES WALLACE & NURICK LLC By AJI Sch n D. Henry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Dated: March 29, 2012 Attorneys for Plaintiff -2- Schaun D. Henry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 12-1137 AMENDED COMPLAINT Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts, by and through its attorneys, McNees Wallace & Nurick LLC, files the following Amended Complaint for damages and injunctive relief against Defendants Kevin Hart and Colt Plumbing Company, d/b/a Colt Plumbing Specialties, and in support thereof, avers as follows: The Parties 1. Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts ("MPP) is a Texas corporation with its principal place of business in Fort Worth, Texas. MPP is authorized to and is doing business in the Commonwealth of Pennsylvania, by and through its authorized sales representatives. 2. MPP is engaged in the business of selling and distributing plumbing parts and maintenance repair parts. 3. MPP sells and distributes plumbing parts and maintenance repair parts in Pennsylvania. 4. Defendant Kevin Hart ("Hart") is an adult individual whose last known address is 581 Pleasant Hall Road, Carlisle, PA 17013. 5. Defendant Colt Plumbing Company, d/b/a Colt Plumbing Specialties ("Colt"), is a Pennsylvania company with a principal place of business at 1132 W. Trindle Road, Mechanicsburg, PA 17050. 6. Colt is also in the business of supplying plumbing parts and maintenance repair parts in Pennsylvania, and is a direct competitor of MPP. Venue 7. Pursuant to Pa.R.C.P. No. 1006, venue is appropriate in Cumberland County, Pennsylvania because the causes of action arise out of one or more transactions or occurrences that took place in Cumberland County. Factual Background 8. The plumbing parts and maintenance repair parts business is a highly competitive business in which one of the most valuable assets of a supplier such as MPP or Defendant Colt is its "book of business." -2- 9. Information relating to the business, particularly that information which gives a company a competitive advantage in securing or retaining a customer's business, is a valuable property interest. 10. As valuable property, information relating to a plumbing supplier's book of business is closely guarded and is deemed to be proprietary and confidential. This information includes, but is not limited to, procedural or technical manuals, customer lists, customer account analyses (including, without limitation, accounts receivable, customer payment histories and customer account activity reports), price books, files and other documents or things. 11. Employees of MPP sell parts and services on its behalf and necessarily have access to and are privy to and knowledgeable about MPP's book of business and related confidential and proprietary information. As a condition to granting sales employees access to such confidential and proprietary information and to protect such information from unauthorized disclosure, sales employees are required to acknowledge the confidential and proprietary nature of this information and to agree to certain restrictions on the use and disclosure of such information. 12. By preserving confidential and proprietary information from unauthorized use and disclosure, MPP, like other companies in the sales business, enhances its ability to protect, retain and grow its business. Using these legitimate means to grow its business, MPP has developed a substantial book of business in Pennsylvania and throughout the United States. -3- 13. On or about January 10, 2005, Hart accepted employment with MPP as a District Manager, with responsibility for selling plumbing parts and maintenance repair parts in the following regions: Pennsylvania - Centre, Mifflin, Union, Snyder, Juniata, Perry, Huntington, Fulton, Franklin, Adams, Cumberland, York, Dauphin, Lebanon and Lancaster Counties; Maryland - Washington, Frederick, Carroll, Baltimore, Harford and Cecil Counties (Hart's territory). A true and correct copy of the map of Hart's sales territory as a District Manager is attached hereto as Exhibit "A." 14. As a part of, and contemporaneously with, his accepting employment as a District Manager for MPP, Hart executed a Non-Competition/Nondisclosure Agreement with MPP. A true and correct copy of this Non-Competition/Nondisclosure Agreement is attached hereto as Exhibit "B." 15. The Non-Competition/Nondisclosure Agreement acknowledges that Hart may receive or develop confidential information during his employment with MPP. Specifically, the Non-Competition/Nondisclosure Agreement provides, in relevant part: Employee acknowledges that the Company has agreed to provide him/her, and he/she shall receive from the Company, special training and knowledge. Employee acknowledges that included in the special knowledge to be received is the confidential information indentified in paragraph 2, below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement... . See Exhibit B, ¶ 1. -4- 16. The Non-Competition/Non-Disclosure Agreement defines "confidential information" as: ...any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit. B, ¶ 2. 17. The Non-Competition/Non-Disclosure Agreement expressly prohibits Hart from disclosing any confidential information to which he had access during his employment with MPP. Specifically, the Agreement provides, in pertinent part: The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information... The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, -5- or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit B, ¶ 2. 18. The Non-Competition/Nondisclosure Agreement also includes a "Covenant Not To Compete" provision, which prohibits Hart from, inter alia, soliciting MPP's customers and clients for a period of one year after Hart's separation from employment with MPP: Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. See Exhibit B, ¶ 1. 19. The non-solicitation clause is further bolstered by a provision that allows for an extension of the prohibition against soliciting MPP's customers in the event of a breach. Specifically, the Non-Competition/Nondisclosure Agreement provides: Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and its affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants... Further, during any period in which the Employee is in breach of the covenant not to compete specified in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. See Exhibit B, ¶ 3. -6- 20. During his employment with MPP, Hart was responsible for selling plumbing parts and maintenance repair parts to customers within Hart's territory. 21. Hart's job responsibilities included solicitation of both new and existing customers for plumbing parts and maintenance repair parts in Hart's territory. 22. Due to the nature of his employment as a District Manager for MPP, during his employment with MPP, Hart had access to and was given confidential information of MPP, including information about MPP's operations, customers, and pricing. 23. This level of detailed information gave Hart a competitive advantage and helped to make him a successful salesman of MPP's products. 24. The described information is highly confidential, proprietary, and is not disclosed outside of MPP, and MPP has taken numerous steps to protect the confidentiality of its confidential information, including, but not limited to, requiring its employees, before being provided access to the information, to execute non- competition/non-disclosure agreements, limiting internal and external access to the confidential information, informing employees that certain information is confidential, and otherwise taking steps to protect the dissemination and use of the confidential information. 25. Because of the nature of MPP's business, MPP made a significant investment in time and expenses in training Hart to work as a District Manager for MPP. -7- 26. In addition, MPP made a significant investment in introducing Hart to customers that he could call upon while working for MPP. In doing so, MPP provided Hart with confidential information that was to be used in accordance with the Non- Competition/Nondisclosure Agreement with MPP. 27. The significant investment of MPP constitutes a protectable interest. 28. Hart resigned employment with MPP on February 25, 2011. 29. Although Hart is no longer employed by MPP, he remains bound by the provisions of the Non-Competition/Nondisclosure Agreement, which remains valid and enforceable. Hart's and Colt's Unlawful Conduct 30. Soon after his employment relationship ended with MPP, Hart accepted employment with North Eastern Supply, a direct competitor of MPP in selling plumbing parts and maintenance repair parts. 31. MPP suspected that Hart may have been calling on or otherwise soliciting sales from customers of MPP on behalf of and while he was employed by North Eastern Supply. 32. On April 28, 2011, MPP sent Hart a letter, reminding him that the terms of the Non-Competition/Nondisclosure Agreement with MPP were still in effect, and that his calling on customers of MPP on behalf of and while he was employed by North Eastern Supply may have been a breach of the Non-Competition/Nondisclosure Agreement. -8- 33. By letter dated May 3, 2011, MPP again reminded Hart of the effectiveness of, and his obligations under, the Non-Competition/Nondisclosure Agreement. In this letter, MPP specifically advised Hart that he is prohibited from selling any products, while an employee of his new employer, to the customers to whom he sold products to while in the employ of MPP. 34. Sometime in the Spring/Summer of 2001, Hart accepted employment with Colt. 35. MPP and Colt are direct competitors in the plumbing parts and maintenance parts business in Pennsylvania. 36. Hart is employed as a sales representative or similar capacity for Colt in Pennsylvania. 37. Hart has been soliciting MPP's customers in Pennsylvania on behalf of Colt. Specifically, Hart has been soliciting, on behalf of Colt, MPP's customers in the territory where Hart was assigned while working with MPP. 38. Initially, by letter dated August 24, 2011, Colt advised MPP that, to the best of its knowledge, Hart was not engaging in any activity that was in violation of the Non-Competition/Nondisclosure Agreement with MPP. A true and correct copy of this August 24, 2011 letter is attached hereto as Exhibit T." 39. By letter dated August 31, 2011, MPP responded to Colt's letter, refusing to submit its customer list to Colt as being confidential business information of MPP, and advising Colt of Hart's obligations under the Non-Competition/Nondisclosure -9- Agreement. A true and correct copy of this August 31, 2011 letter is attached hereto as Exhibit "D." 40. Despite MPP's letter of August 31, 2011, MPP was subsequently advised by two of its customers that Hart was soliciting the customers' business on behalf of, and while employed by, Colt, in violation of the terms of the Non-Competition/ Nondisclosure Agreement. 41. On October 19, 2011, MPP sent Colt a letter, advising Colt of Hart's breaches of the Non-Competition/Nondisclosure Agreement in soliciting at least two of MPP's customers who Hart served while employed by MPP. A true and correct copy of this October 19, 2011 letter is attached hereto as Exhibit "E." 42. Specifically, MPP advised Colt that in September 2011, Hart had contacted Evangelical Hospital and Geisinger Medical Center, two of MPP's clients for whom Hart serviced while employed by MPP, in an attempt to solicit business for Colt. See Exhibit E. 43. By letter dated October 25, 2011, Colt advised MPP that it did not believe that Hart was violating the Non-Competition/Nondisclosure Agreement with MPP because Evangelical Community Hospital and Geisinger Medical Center are apparently customers of Colt. Colt claimed that Hart was not the salespersons assigned to these two accounts on behalf of Colt. A true and correct copy of this October 25, 2011 letter is attached hereto as Exhibit T." -10- 44. In this letter, Colt also advised MPP that it will not assign Hart to make any calls on accounts which he handled for MPP while he was employed by MPP. See Exhibit F. 45. Upon information and belief, Hart has continued to solicit, on behalf of Colt, MPP's customers and to otherwise violate the terms of the Non-Competition/ Nondisclosure Agreement since Colt's receipt of the October 19, 2011 letter and Colt's alleged assurances to the contrary. 46. On January 25, 2012, MPP learned from its customer, Cornwall Manor, that Hart is its Colt representative, and that Hart had set up a meeting with Cornwall Manor during the week of January 25, 2012. Hart had serviced Cornwall Manor while he was employed by MPP. 47. On January 26, 2012, MPP was advised by its customer, John Clarke Elementary, that Hart has been calling John Clarke Elementary to set up sales calls appointments. Hart visited John Clarke Elementary in December 2011 to solicit sales on behalf of Colt. Hart serviced John Clarke Elementary while he was employed by MPP. 48. On January 27, 2012, MPP was advised that Hart was the Colt representative for Central Dauphin Schools, and that Hart had been soliciting sales from Central Dauphin Schools on behalf of Colt. Hart serviced Central Dauphin Schools while he was employed by MPP. 49. By his actions, Hart is capitalizing on the knowledge and goodwill he gained and/or developed while representing MPP, and is using or divulging MPP's trade -11- secrets and other confidential and proprietary information to Colt, allowing it to compete unfairly with MPP. 50. Hart's actions in soliciting MPP's customers whom he served while he was employed by MPP are in violation of the Non-Competition/Nondisclosure Agreement with MPP. 51. Hart's actions have caused MPP damages, including loss of customers, loss of customer goodwill, loss of revenue, and substantial, yet incalculable other financial losses. 52. Hart's efforts to solicit MPP's customers, disclose MPP's confidential information, and enable Colt to compete unfairly against MPP is causing immediate and irreparable injury, for which there is no adequate remedy at law. Count 1: Breach of Contract MPP v. Hart 53. MPP incorporates herein by reference Paragraphs 1 through 52, above, as if set forth in full. 54. In consideration for the commencement of his employment with MPP, Hart entered into a valid, binding Non-Competition/Nondisclosure Agreement with MPP. 55. In the Non-Competition/Nondisclosure Agreement, Hart agreed that he would not disclose MPP's trade secrets and other confidential and proprietary information to third parties. 56. The Non-Competition/Nondisclosure Agreement also contained a "Covenant Not to Compete," which prohibited Hart from soliciting MPP's customers -12- whom Hart serviced while employed by MPP for one year after the termination of his employment with MPP. 57. MPP has a legitimate, protectable interest in, inter alia, the confidential information outlined above, including, but not limited to, the names and addresses of any customers and clients of MPP, as that information has economic and competitive value to MPP. 58. MPP has taken significant measures to reasonably and fairly ensure that its confidential information, including its customer lists and customer information, remains confidential. 59. Since he became employed by Colt, Hart has been soliciting MPP's customers whom Hart serviced while employed by MPP. 60. Hart has breached and will likely continue to breach the Non-Competition/ Nondisclosure Agreement by soliciting sales from MPP's customers on behalf of Colt and by assisting Colt in unfairly competing with MPP. 61. Hart has also disclosed trade secrets and other confidential information regarding MPP's business and customers to enable Colt to misappropriate MPP's customers. 62. Despite the contractual provisions agreed to by Hart, he has refused to cease soliciting MPP's customers while he is employed by Colt, a director competitor of MPP. 63. As a direct and proximate result of Hart's breaches of the Non- Competition/Nondisclosure Agreement, MPP has been damaged, and will continue to -13- be damaged, in that MPP will suffer decreased competitiveness and lost revenue, profits, and customer goodwill. 64. As a direct and proximate result of Hart's breaches of the Non- Competition/Nondisclosure Agreement, MPP has suffered and will continue to suffer irreparable harm in the form of lost customers and customer goodwill. 65. As a result of Hart's actions, MPP reasonably anticipates the loss of substantial, yet incalculable revenues which are expected to exceed the sum of $50,000.00. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Kevin Hart, and that Hart be enjoined, for one additional year, from using or disclosing any of Plaintiffs proprietary and confidential business information and from soliciting Plaintiffs customers, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with costs and such other relief as deemed appropriate by the Court. Count II: Tortious Interference with Contract MPP V. Colt 66. MPP incorporates herein by reference Paragraphs 1 through 65, above, as if set forth in full. 67. The Non-Competition/Nondisclosure Agreement constitutes a valid and binding written contract between MPP and Hart. -14- 68. Colt, with full knowledge of the Non-Competition/Nondisclosure Agreement between Hart and MPP, intentionally and willfully interfered with that contract by inducing Hart to breach it in allowing him to soliciting MPP's customers. 69. Colt's actions are without justification or privilege. 70. As a result of Colt's actions, MPP has been damaged, and will continue to be damaged, in that MPP will suffer decreased competitiveness and lost revenue, profits and customer goodwill. 71. As a result of Colt's actions, MPP reasonably anticipates the loss of substantial, yet incalculable revenues which are expected to exceed the sum of $50,000.00. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Colt Plumbing Company, d/b/a Colt Plumbing Specialties, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with costs and such other relief as deemed appropriate by the Court. Count III: Violation of Pennsylvania Uniform Trade Secret Act MPP v. Hart 72. MPP incorporates herein by reference Paragraphs 1 through 71, above, as if set forth in full. 73. In the course of his employment with MPP, Hart was privy to MPP's confidential and proprietary business information, including its customer lists, customer contact information, pricing, and sales strategies. -15- 74. This confidential information constitutes a "trade secret" under Pennsylvania's Uniform Trade Secrets Act because it is information that derives independent economic value to MPP from not being generally known to, and not being readily ascertainable by, other persons who can obtain economic value from its disclosure or use. 75. MPP invested substantial time, effort and money in the acquisition and further development of this confidential business information. 76. MPP's confidential business information is unique to MPP and would be of great value to competitors such as Colt. 77. Hart misappropriated MPP's confidential information by using that information to solicit business for MPP's competitor, Colt. 78. Hart's misappropriation and use of MPP's confidential information has caused, and will cause, substantial harm to MPP by placing MPP at a competitive disadvantage and by causing MPP to lose customers through unfair and improper use of its confidential business information. 79. Hart's misappropriation and use of MPP's confidential information is willful, malicious, and continuing. 80. MPP is entitled to attorneys' fees due to Hart's willful and malicious conduct. 12 Pa.C.S.A. § 5305. 81. As a result of Hart's actions, MPP reasonably anticipates the loss of substantial, yet incalculable revenues which are expected to exceed the sum of $50,000.00. -16- WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Kevin Hart, and that a permanent injunction be issued barring Hart from using or disclosing Plaintiffs confidential information, and that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with attorneys' fees, costs and such other relief as deemed appropriate by the Court. McNEES WALLACE & NURICK LLC a.?Jd Schapn D. Hdnry I . D. No. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Dated: March 29, 2012 Attorneys for Plaintiff -17- ??VJ` ?i Iv 7 Co . Page I of I Y6r MAP OF PENNSYLVANIA'S 67 aol. com /last revised July 1997 Q ? ia ' ia @a Sennsylivan ry (?v ,? C 'E:r/TnF' his /o, /;:; ?Z/il/ C'a?,?,*?Ghvd http://home.attAct/ judicimy/Map.htmi /7GCvT.!/?Qdit/ 12=2004 G??Nlt1?N I ° d dso:so ;o La o8a C OUNTIE S ?J? 1" 5 NONCOMPETITION /NONDISCLOSURE AGREEMENT PAR This Non-competition / Nondisclosure Agreement (the "Agreement') is entered into this day o , 20 a by and between JOHN W. GASPARINI, INC. d/b/a. MARK'S PLUMBNO (hereinafter referred to as the "Company„) and 11{}_( (hereinafter referred to as the "Employee"). RECITALS A. Contemporaneously with the execution of the Agreement, Company has offered Employee a position with the Company as a District Manager (a/k/a sales representative) and Employee has accepted that position. B. The Employee and the Company recognize that as a sales representative the Employee will necessarily have access to the Company's proprietary information, described below, and they further recognize that having had access to such information the Company will be damaged if the Employee ever uses the information in competition with the Company. C. Employee and the Company therefore desire to set forth in this Agreement the conditions under which Employee shall have access to such proprietary information and the limitations to be placed on Employee upon termination of the employment relationship. NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and promises contained herein, the parties hereby agree as follows: 1. Employee acknowledges that the Company has agreed to provide him/her, and he/she shall receive from the Company, special training and knowledge. ---__ __ --------Employe?aL i?wi?ttg?Sr[h8t cltidezriii tli ??c 7ciewt? -be received i`s the confidential information identified in paragraph 2 below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement. Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. Employee represents to the Company that the enforcement of the restriction contained in this paragraph 1 would not be unduly burdensome to Employee and that in order to induce the Company to . employ the Employee, Employee further represents and acknowledges the Employee is willing and able to compete calling on other potential customers employee may develop other than clients or customers employee called on, while with the company. 2. The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information. For purposes of the immediately preceding sentence, persons property entitled to such information shall be (a) the board of directors of the Company and such officers, employees and agents of the Company, or any affiliate thereof, to whom such information is furnished in the normal course of business under established policies approved by the Company, and (b) such outside parties as are legally entitled to or are customarily furnished such information, including banking, lending, collection, accounting and data processing institutions or agencies who or which are provided such information in the normal course of business of the Company. The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. Upon any termination of the employment -- ic -a-U6nshr`p Chc Employee will deliver aiiy -and-all of the fofego`nrgIferris to fEe Company within 10 days. Samples, sample cases, sales rep catalogs, and items not confidential in nature will be billed to the sales rep if such items are not returned within 10 days, and will be deducted from any final compensation due. Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or paragraph 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and it affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants. Such right to an injunction shall be cumulative and in addition to, and not in lieu of, any other remedies to which the Company may show itself justly entitled. Further, during any period in which the Employee is in breach of the covenant not to compete specified in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. In addition to the restrictions set forth in paragraphs 1 and 2 of this Agreement, Employee shall not while employed by the Company or upon the termination of the employment relationship and for one year thereafter either directly or indirectly (a) make known to any person, firm or corporation, the names and addresses of any of the customers of the Company or any other information pertaining to such persons, (b) call on, solicit or take away, or attempt to call on, solicit or take away any of the customers of the Company upon whom Employee called or with whom Employee became acquainted during Employee's employment by the Company or (c) recruit or hire or attempt to recruit or hire directly or by assisting others, any other employee of the Company or any of its affiliates. The covenants contained in this Agreement will be construed as ancillary to and independent of any other terms or conditions of Employee's employment by the Company and the existence of any claim or cause of action of Employee against the Company or any officer or director or shareholder of the Company, whether predicated on Employee's employment by the Company, the termination of that employment, this Agreement or otherwise, shall not constitute a defense against the enforcement by the Company of the covenants of the Employee contained in this Agreement. 6. The Employee and the Company agree that the limitations contained in paragraph 1 of this Agreement with respect to clients or customers, duration, and scope of activity are reasonable. However, if any court shall determine that the clients or customers, duration, or scope of activity of any restriction contained in this Agreement is unenforceable, it is the intention of the parties that such restrictive covenant set forth herein shall not thereby be terminated but shall be deemed -- ---amanded to they txtem?gv#t 8 ta?erideiit valid and a of =01 7. The Employee represents and warrants to the Company that Employee is not a party to any agreement that in any way restricts, prohibits or prevents Employee from performing the duties of a sales representative for the Company in the geographic area described on Exhibit "A". WITNESS the execution hereof on the date and year first written above. JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS By. President T474( 3 i W ti ' o f a ? • ; + y ?® s ? til • 'j • a t3 " ' I Y • ? L i A• ? • s t i °• S 1 ? • /? i O VV?? .? . l o t id •? 1 o • 'Airs ',I I 115 PENN?IVI?NIA 0 A r ft A • A Q 1-411I*,-(l um d ?? ??` C?i Fi LUM B I N D s P C C I A LTI E 9 play a Neatblp Speolefilea - Aeplacomwd Parts A TOO* -- 1132 W. Titndle lined - P.O. Bout 957 - MecheniCsbwg, PA 17060-0957 ?. I fr WHOLESALE DISTRIBUTOR August 24, 2011 Mark's Plumbing Parts 3312 Ramona Fort Worth, TX 76116-6428 Attn: Marvin L. Rubac, President Re: Kevin Joseph Hart Dear Mr. Rubac, Colt Plumbing Company is aware of the employment agreement that exists between Mark's Plumbing Parts and Mr. Kevin Hart. 1 can assure you that Colt will cooperate to the fullest extent possible in enforcing the terms of that agreement. To the best of my knowledge Mr. Hart is not engaging in any activity that would be considered a violation of his agreement with MPP. However, I have no knowledge of the accounts Mr. Hart called on while in the employ of MPP. Please send me a list of all the accounts where MPP alleges a violation and I will make sure Mr. Hart is not assigned to any of those accounts. Sincerely, Robert C. Shaw President cc: Kevin J. Hart Phone: 717-697.4618 Www.6oRpkumb1ny.o0m Fax: 717.897.0951 roil free: 800-233-1078 Email: ma11Qcwxp/umbin8.com Toll-Pro* fax: 804537.3138 ??? ^ l?? LYNCH SCHWAB, PLLC ATTORNEYS AND COUNSELORS AT LAW 1441 ROUTE 22 206 Additional Syracuse offices SUITE BREWSTER, NEW YORK 10509 syncuse White Plains L (914) 304.4353 f. (914) 304-4378 Louis U. Gasparini, Esq. Member lea sli mini ichtchwah.com August 31, 2011 Via Certified Mail. Return Receiat Reauested #:7010-106040000-6040-7974 Colt Plumbing Specialties Attn: Mr. Bob Shaw 1132 W Trindle Road Mechanicsburg, PA 17055 Re: Kevin Joseph Hart Dear Mr. Shaw, This law firm represents Mark's Plumbing Parts (hereinafter "MPP). I am in receipt of your letter dated August 24, 2011. MPP will not be providing to you the names of any of its customers. As you are likely aware, this information is confidential and only within the knowledge of MPP and its employees. I would advise you that Mr. Hart is well aware of what customers he called upon during his tenure with MPP, and he is legally prohibited from violating his non- competition agreement. As a former District Sales Manager with MPP, Mr. Hart is aware of the prohibition of calling on MPP customers, or using any confidential and proprietary information to further his business with Colt Plumbing Specialties. I must remind you and Mr. Hart that in the event that MPP customers are improperly solicited or if trade secrets or other private data and information of MPP is used, we will immediately commence legal proceedings to protect the interests of MPP. In addition to any remedies available under applicable law and the Agreement with Mr. Hart, MPP will seek reimbursement of lost revenue of sales incurred as a direct result of any breach of the Agreement. MPP considers any intentional interference with its business contracts as improper, and will aggressively act to protect its interests, including legal proceedings in all jurisdictions where MPP. has sustained damages. w w. lynchschwab.com Page 2 of 2 August 31, 2011 Should you wish to discuss this matter further, please do not hesitate to contact the undersigned directly. Very truly yours, LYNCH SCHWAB, PLLC BY: LOUIS U. GASPARINI LUG/tb CC: Kevin Joseph Hart 35 Mount Zion Road York, Pennsylvania 17402 Marks Plumbing Parts Nt_I i wN w. hndvvt hwab.ccnn ?v i McNees Wallace & Nurick LLc 100 Pine Street* PO Box 1166 • Harrisburg, PA 17108-1166 Tel: 717.232.8000 & Fax: 717.237,5300 October 19, 2011 VIA FACSIMILE AND FIRST CLASS MAIL Robert P. Shaw, President Colt Plumbing Specialties 1132 West Trindle Road P.O. Box 957 Mechanicsburg, PA 17050-0957 RE: Kevin Joseph Hart Dear Mr. Shaw: Schaun D. Henry Dined Dial: 717.237.5346 Dlred Fax: 717.260.1702 sherdyQn wn.com This law firm has been retained by Mark's Plumbing Parts (hereafter "Mark's" or the Company1) with respect to the breach of a non-compete and non-disclosure by your employee, Kevin Hart (Hart). By letter dated April 28, 2011, Lou Gasparini of Lynch Schwab, PLLC informed you that Hart was acting in violation of his agreement with the Company by contacting and soliciting the Company's customers with whom he became acquainted while employed by Mark's Plumbing. Mr. Shaw, in spite of your assurances to the Company, by letter dated August 24, 2011, that you would cooperate to the fullest extent possible in enforcing the agreement, Mark's Plumbing has leamed that Hart has contacted at least two of the Company's customers on behalf of Colt Plumbing in violation of his non-compete agreement. Mr. Hart contacted Evangelical Hospital and Geisinger Medical Center in September 2011 in an attempt to solicit business for Colt. We request that you respond no later than October 26, 2011 with assurances that you have spoken to Hart about his unlawful actions on your behalf and have instructed him to take no action that would further violate his agreement. Hart knows full well those customers with whom he became acquainted while in Mark's employ. Reinforcement from you may be all that is needed here. When.you return your correspondence to us, please return the enclosed acknowledgment signed by Hart. SCANNED I? a(041_4 -o www.mwn.com u.,.,,.-..,,. DA a I .. .???? DA a CT.T r nsa crc PA 0 WAn cmm PA a nN • WncNwr.Tnu nr. Rpbert P. Shaw, President Colt Plumbing Specialties October 19, 2011 Page 2 Mark's would like nothing better than to settle this matter without further action. If the Company should learn that Hart continues to solicit its customers, it will have no choice to but to take immediate legal action. Hart's violation of his non-compete will cause irreparable harm to Mark's. We are certainly hopeful that this matter can be amicably put to rest. Very truly yours, McNEES WALLACE & NURICK LLC y By Schaun D. Henry SDH/dlb Enclosure c: Lou Gasparini ?? ??,? !C1 f PLUMBIqG9LTIES Plumbing 3 Hosting Speofa/tles Rep/acamaM Pads i Tools 1132 W. Trindle Road • Po. Box 957 • Mechanicsburg, PA 17050-0957 WHOLESALE DISTRIBUTOR October 25, 2011 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attn: Schaun D. Henry Re: Kevin Joseph Hart Dear Mr. Henry, The two accounts you mention in your letter of October 191h, Geisinger Medical Center and Evangelical Community Hospital are accounts that Colt has called on for many years. Mr. Hart is not the salesperson assigned to these accounts so there would be no financial incentive for him to solicit their business. If Mark's has lost business at either of these accounts that business has not gone to Colt Plumbing Company. Mr. Hart was hired with the understanding that he would not call on those accounts covered by any legally binding agreement with Mark's Plumbing Parts. I met with Kevin the afternoon of October 201h to remind him that I don't want him calling on any accounts that could be considered a violation of his non-compete agreement until the term of that agreement has expired. If there are any accounts on his current customer list that fall into this category, they will be removed. There are accounts Colt would like to assign to Mr. Hart. There are also customers who have called asking Mr. Hart to call on them. In both situations he has declined. I would therefore be surprised if sufficient evidence exists to support the contention that Mr. Hart has committed a material breech of his non-compete agreement. Sincerely, Robert C. Shaw President' cc: Kevin J. Hart Phone: 717-697-4618 www.coltplumbinq.com Far: 717-697.0951 Toll Free: 800-233-1078 Emalh maik&ollplumbing.com Toll-FrK Fax: 800-537-3139 r r VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § ?4904, relating to unsworn falsification to authorities, I, Marvin Rubac, hereby certify that I am the President of Mark's Plumbing Parts. In that capacity, I am authorized to make this Verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Dated: e-v /r , Mark's Plumbing Parts BY: Marvin Rubac w Y CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hulbert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 Wade D. Manley, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17403 ji h I Kimberly . Selemba Dated: March 29, 2012 JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 12-1137 CIVIL KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, : Defendants IN RE: PRELIMINARY INJUNCTION ORDER AND NOW, this 30 ~ day of March, 2012, the motion of the Plaintiff for Preliminary Injunction is DENIED. BY THE COURT, 1`T Xi" Hess, P. J. /Schaun D. Henry, Esquire For the Plaintiff Wade Manley, Esquire For DefendantKevin Hart Hubert X. Gilroy, Esquire For Defendant Colt Plumbing Company :rlm ?G?L L - - . ?, r;? JOHN W. GASPARINI, INC., IN THE COURT OF COMMON PLEAS OF d/b/a MARK'S PLUMBING CUMBERLAND COUNTY, PENNSYLVANIA PARTS, Plaintiff CIVIL ACTION - LAW NO. 12-1137 CIVIL VS. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, : Defendants IN RE: PRELIMINARY INJUNCTION MEMORANDUM AND ORDER The Defendant, Kevin Hart, left the employment of Plaintiff, Mark's Plumbing, in February of 2011. A condition of his employment had been that, for a period of one year after the termination of his employment, Hart could not "engage or participate in the promotion, sale and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that [he] called on, or was assigned to the employee." Plaintiff in this case contends that Defendant Hart and his current employer, Colt Plumbing, have violated this covenant not to compete. They have filed a motion for preliminary injunction which would have the effect of extending the covenant not to compete for an additional year. Questions in this case, therefore, involve not only whether there has been a violation of the covenant not to compete, but whether an extension for a year, under the circumstances, is reasonable. See Hess v. Gebhard and Company, Inc., 769 A.2d 1186 (Pa. Super. 2001). In this case, the evidence suggests that during the year following his termination from Mark's, Mr. Hart had contact with a former customer, a Mr. Pflegger, a plumber for Evangelical Hospital. Mr. Pflegger testified that he had bought plumbing parts from Mr. Hart when he was employed by Mark's. He knew, from a business card, that Mr. Hart was now employed by Colt. He could not remember his conversation with Mr. Hart but did indicate that he had never purchased plumbing parts from the Colt Plumbing Company. There is no evidence that in the course of Mr. Hart's meeting with Mr. Pflegger that he promoted plumbing parts let alone sold any. The only other testimony concerning a violation of the covenant not to compete was to the effect that Mr. Hart had had contact with one or two former customers indicating that he would be calling upon them in the future. The "future" presumably meant after the period of his covenant not to compete with Mark's Plumbing had expired. Two well-established legal principles compel the entry of an order denying the preliminary injunction in this case. First, restrictive covenants constitute a restraint on the employee's trade and are, therefore, strictly construed against the employer. In a related vein, any ambiguities in the covenant are construed against the drafter of the contract who, in this case, was the Plaintiff and former employer. Second, a request for a preliminary injunction is an extraordinary remedy. The plaintiff must prove, inter alia, that relief is necessary to avoid immediate and irreparable harm. In this case, there has been no showing that any harm, whatsoever, has been caused or is imminent. Most importantly, in order to obtain a preliminary injunction the plaintiff must establish that its right to relief is clear. Kehly v. City of'Pittsburgh, 687 A.2d 41 (Pa.Cmwlth. 1996). Accordingly, a court will not grant injunctive relief in doubtful or uncertain cases. Id. 2 In short, whether there has been a violation of the covenant not to compete in this case is far from clear. Even assuming there was a violation, whether the period of non-compete ought to be extended for an additional twelve months is, at best, uncertain. ORDER AND NOW, this day of March, 2012, the motion of the Plaintiff for Preliminary Injunction is DENIED. BY THE COURT, Kevin A. Hess, P. J. Schaun D. Henry, Esquire For the Plaintiff Wade Manley, Esquire For DefendantKevin Hart Hubert X. Gilroy, Esquire For Defendant Colt Plumbing Company Am Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALINN MAY 10 PM 3: 5i0 MARTSON LAW OFFICES I.D. 29943 CUMBERLAND Ci?? ??I?' 10 East High Street PEHNSYLVAI."' Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Colt Plumbing JOHN W. GASPARINI, INC. d/b/a MARK'S PLUMBING PARTS, Plaintiff vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2012-1137 KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES Defendant ANSWER TO AMENDED COMPLAINT Colt Plumbing Company, by its attorneys, MARTSON LAW OFFICES, sets forth the following in response to the Amended Complaint filed in the above matter: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. By way of further answer, Colt Plumbing Company is a busines corporation. 6. Admitted. 7. Admitted. 8. Admitted that plumbing parts and maintenance repair parts business is competitive and that the "book of business" is an asset of a supplier. Denied that the customer list of such businesses are in any way either proprietary or particularly confidential. 9. Denied. Answering Defendant Colt is unable to understand exactly what this allegation means, and the allegation is thereby denied. 10. Denied that any customer list is either proprietary and confidential. Admitted that certain information provided by the customer to MPP may be confidential in nature. 11. Denied. Answering Defendant Colt is not aware of the nature of work of employees of MPP. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 12. Denied. Answering Defendant Colt is not aware of the actions of MPP with respect to preserving confidential and proprietary information and its alleged development of a substantial book of business. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 13. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 14. Denied in part and admitted in part. Admitted that Answering Defendant Colt was aware of a Non-Competition/Nondisclosure Agreement that Hart had entered into with MPP. Denied as to when said agreement was entered into and denied with respect to whether Exhibit "B" of Plaintiffs Complaint constitutes the agreement. This is information solely within the knowledge of Plaintiff and Defendant Hart. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of these allegations. Proof thereof is demanded. 15. The answer as set forth in paragraph 14 above is incorporated herein by reference thereto. 16. The answer as set forth in paragraph 14 above is incorporated herein by reference thereto. 17. The answer as set forth in paragraph 14 above is incorporated herein by reference thereto. 18. The answer as set forth in paragraph 14 above is incorporated herein by reference thereto. 19. The answer as set forth in paragraph 14 above is incorporated herein by reference thereto. 20. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 21. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 22. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 23. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 24. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 25. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 26. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 27. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. Additionally, by way of further answer, said allegation is a conclusion of law and a responsive pleading is not required. 28. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 29. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Additionally, by way of further answer, said allegation is a conclusion of law and a responsive pleading is not required. 30. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 31. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 32. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 33. Denied. After reasonable investigation Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 34. Admitted that Defendant Hart accepted employment with Answering Defendant Colt on July 18, 2011. 35. Admitted that MPP and Answering Defendant Colt are competitors. The allegation that MPP and Colt are "direct" competitors is denied as Answering Defendant Colt is unable to determine the meaning of what the term "direct" means in this pleading. 36. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 37. Denied that Hart has been soliciting customers of MPP on behalf of Answering Defendant Colt. If, in fact, Hart has been making such solicitations, such solicitations are in direct violation of instructions Answering Defendant Colt gave to Hart on this particular issue. 38. Admitted. 39. Admitted. 40. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 41. Admitted. 42. Admitted that the letter noted as Exhibit "E" speaks for itself. 43. Admitted. 44. Admitted. By way of further answer, Answering Defendant Colt relied upon information from MPP or Hart with respect to accounts that Hart handled for MPP while he was employed with MPP. 45. Denied. The allegations as set forth in paragraph 37 above are incorporated herein by reference thereto. 46. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 47. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 48. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. 49. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. Additionally, by way of further answer, said allegation is a conclusion of law and a responsive pleading is not required. 50. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. Additionally, by way of further answer, said allegation is a conclusion of law and a responsive pleading is not required. 51. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. Additionally, by way of further answer, said allegation is a conclusion of law and a responsive pleading is not required. 52. Denied. After reasonable investigation, Answering Defendant Colt is unable to determine the truth or falsity of this allegation. Proof thereof is demanded. Additionally, by way of further answer, said allegation is a conclusion of law and a responsive pleading is not required. COUNT I: BREACH OF CONTRACT MPP v. HART 53-65. The allegations in these paragraphs do not refer to Answering Defendant Colt and, therefore, Answering Defendant Colt does not respond to these allegations. COUNT II: TORTIOUS INTERFERENCE WITH CONTRACT MPP v. COLT 66. Admitted. 67. Denied. Said allegation is a conclusion of law and a responsive pleading is not required. 68. Denied. On the contrary, Answering Defendant Colt at all times gave specific instructions to Hart that he should not take any action or solicit any customers that would in anyway be in violation of the Non-Competition/Nondisclosure Agreement between Hart and MPP. 69. Denied. Said allegation is a conclusion of law and a responsive pleading is not required. By way of further answer, Colt's actions in this matter have always been justified, and the allegations as set forth in paragraph 68 above are incorporated herein by reference thereto. 70. Denied. Said allegation is a conclusion of law and a responsive pleading is not required. Additionally, by way of further answer, Colt has taken no action to damage MPP, and it is specifically denied that MPP has suffered any damages or decreased competitiveness in lost revenue by way of any actions of Hart and, more specifically, by way of any actions of Colt. 71. Denied. The allegations set forth in paragraph 70 are incorporated herein by reference thereto. WHEREFORE, Answering Defendant Colt requests that Plaintiff's Complaint be dismissed. COUNT III: VIOLATION OF PENNSYLVANIA UNIFORM TRADE SECRET ACT MPP v. HART 72-81. The allegations in these paragraphs do not refer to Answering Defendant Colt and, therefore, Answering Defendant Colt does not respond to these allegations. WHEREFORE, Defendant Colt requests this Honorable Court to dismiss Plaintiff's Complaint. Dated: May q , 2012 6*A2,4 Hubert X. Gilroy, E uire Martson Law Off s 10 East High Street Carlisle, PA 17013 (717) 243-3341 ID #29943 Attorney for Defendant Colt VERIFICATION The foregoing Answer to Amended Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. ROB ART SHAW MICHAEL L. BANGS, ESQUIRE BANGS LAW OFFICE, LLC 429 South 18'x' Street Camp Hill, PA 17011 (717) 730-7310 m i kebanssraD.verizon.net ATTORNEY FOR DEFENDANT KEVIN HART JOHN W. GASPARINI, INC., ) IN THE COURT OF COMMON PLEAS d/b/a MARK'S PLUMBING PARTS, ) OF CUMBERLAND COUNTY, Plaintiff ) PENNSYLVANIA VS. ) NO. 12-1137 CIVIL =M :mss KEVIN HART and COLT PLUMBING ) CP:?'IL ACTION -- --? d/b/a COLT PLUMBING COMPANY c -? -a - , SnrrT n r rTrC l r `' - Defendants ) • PRAECIPE Please withdraw my appearance as counsel for the Defendant, Kevin Hart, in the above- referenced matter. JOHNSON DUFFIE STEWART & WEIDNER WADE D. MANLEY Please enter my appearance as counsel for the Defendant, Kevin Hart, in the above- referenced matter. BANGS LAW OFFICE, LLC MICHAEL L. BANGS Date: _Si' 0 ; ?^ MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR DEFENDANT BANGS LAW OFFICE, LLC KEVIN HART 429 South 18a' Street Camp Hill, PA 17011 (717) 730-7310 mikebangrs@verizori.net JOHN W. GASPARINI, INC., ) IN THE COURT OF COMMON PLEAS d/b/a MARK'S PLUMBING PARTS, ) OF CUMBERLAND COUNTY, Plaintiff ) PENNSYLVANIA VS. ) NO. 12-1137 CIVIL KEVIN HART and COLT PLUMBING ) CIVIL ACTION COMPANY, d/b/a COLT PLUMBING ) SPECIALTIES, ) NOTICE: You are hereby notified to respond Defendants ) to the enclosed New Matter and Counterclaim within twenty (20) days from service or a default judgment may be entered against you. MICHAEL L. BANGS (ID #4 63) Attorney for Defendant Kevin Hart ANSWER, NEW MATTER AND COUNTERCLAIM OF DEFENDANT KEVIN HART 1 Admitted. . cz, cz: 2. Admitted. w "v r 3. Admitted. -<'h' -- r 4. Admitted. _-x C71) Q) 5. Admitted. ' Cv 6. Admitted. 7. Admitted. 8. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 9. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 10. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 11. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 12. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 13. Admitted in part and denied in part. It is admitted that on or about January 10, 2005 Defendant Hart accepted employment with MPP. The rest of the averment is denied and it is specifically denied that the Exhibit A accurately reflects Defendant Hart's territory while he was employed by MPP. 14. Admitted. 15. Admitted in part and denied in part. It is admitted that Paragraph 15 accurately reflects what the document says is attached as Exhibit B. It is denied if the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 16. Admitted in part and denied in part. It is admitted that Paragraph 16 accurately reflects what the document says is attached as Exhibit B. It is denied if the purpose of this 2 averment is to prove any other aspect of this matter or as to any interpretation given to that language. 17. Admitted in part and denied in part. It is admitted that Paragraph 17 accurately reflects what the document says is attached as Exhibit B. It is denied if the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 18. Admitted in part and denied in part. It is admitted that Paragraph 18 accurately reflects what the document says is attached as Exhibit B. It is denied if the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 19. Admitted in part and denied in part. It is admitted that Paragraph 19 accurately reflects what the document says is attached as Exhibit B. It is denied if the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 20. Admitted in part and denied in part. It is admitted that Defendant Hart was responsible for selling plumbing parts and maintenance repair parts to customers within Hart's territory. It is denied that the exhibit attached to the Complaint reflects Defendant Hart's territory while employed with MPP. 21. Admitted in part and denied in part. It is admitted that Defendant Hart was responsible for solicitation of both new and existing customers for plumbing parts and maintenance and repair parts in Hart's territory. It is denied that the exhibit attached to the Complaint reflects Defendant Hart's territory while employed with MPP. 22. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 23. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 24. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 25. Denied. It is specifically denied that MPP made a significant investment in time and expense in training Hart to work as a District Manager for MPP in that Defendant Hart had significant years of experience working in the industry prior to being hired by MPP. 26. Denied. It is specifically denied that MPP made a significant investment in introducing Hart to customers that he could call upon while working for MPP or that MPP provided Hart with confidential information as that is defined in the Non- Competition/Nondisclosure Agreement that he had with MPP. It is averred that Defendant Hart has worked in the industry for years and knew most of the customers of MPP prior to his work with MPP. 27. Denied. This is a legal conclusion to which no answer is required but to the extent an answer is required, it is specifically denied. 28. Admitted. 29. Denied. This is a legal conclusion to which no answer is required but to the extent an answer is required, it is specifically denied. 4 30. Admitted. 31. Denied. It is denied that Defendant Hart was calling or otherwise soliciting sales from customers of MPP on behalf of and while he was employed by North Eastern Supply. 32. Admitted in part and denied in part. It is admitted that on April 28, 2011 MPP sent Defendant Hart a letter. It is denied that Defendant Hart was in any way violating his Non- Competition/Nondisclosure Agreement that he had signed with MPP. 33. Admitted in part and denied in part. It is admitted that by letter dated May 3, 2011, MPP reminded Defendant Hart of his obligations under the Non-Competition/Nondisclosure Agreement. It is denied that Defendant Hart violated any provisions of these agreements. 34. Denied. Defendant Hart accepted employment with Colt in July, 2011, not 2001. 35. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 36. Admitted. 37. Denied. It is specifically denied that Defendant Hart has solicited MPP's customers in Pennsylvania on behalf of Colt. 38. Denied. Defendant Hart is without knowledge sufficient to form a belief as to who sent a letter to MPP and therefore it is denied and strict proof thereof is demanded at the trial of this case. 39. Denied. Defendant Hart is without knowledge sufficient to form a belief as to who sent a letter to MPP and therefore it is denied and strict proof thereof is demanded at the trial of this case. 5 40. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 41. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 42. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 43. Admitted in part and denied in part. It is admitted that the October 25, 2011 letter was sent and that its contents are accurately reflected in Exhibit F. All other meanings of this averment as stated are denied. 44. Admitted as stated. 45. Denied. It is specifically denied that Defendant Hart has solicited, on behalf of Colt, any of MPP's customers or in any way violated his Non-Competition/Nondisclosure Agreement. 46. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 47. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 6 48. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 49. Denied. It is specifically denied that Defendant Hart has violated any agreement that he had with MPP and is therefore capitalizing on any knowledge and goodwill he gained or developed while representing MPP or that he has divulged any trade secrets or confidential or proprietary information to Colt, his current employer. It is averred that Defendant Hart has been in the business for over two decades. 50. Denied. It is denied that Defendant Hart has solicited MPP's customers and further that Defendant Hart is in violation of any Non-Competition/Nondisclosure Agreement with MPP. 51. Denied. It is specifically denied that Defendant Hart has caused any damages to MPP. 52. Denied. It is specifically denied that Defendant Hart has solicited MPP's customers or disclosed any of MPP's confidential information to anyone in violation of his Non- Competition/Nondisclosure Agreement with MPP. COUNT I: BREACH OF CONTRACT MPP v. HART 53. Defendant Hart incorporates his answers to Paragraphs 1 through 52 herein by reference. 54. Denied. This averment is a legal conclusion to which no answer is required but to the extent an answer is required it is specifically denied. 7 55. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 56. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 57. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 58. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 59. Denied. It is specifically denied that Defendant Hart has been soliciting MPP's customers who Defendant Hart serviced while employed by MPP. 60. Denied. It is specifically denied that Defendant Hart has breached or will continue to breach any Non-Competition/Nondisclosure Agreement that he had with MPP. 61. Denied. It is specifically denied that Defendant Hart has disclosed trade secrets or any other confidential information regarding MPP's business and customers to enable Colt to misappropriate MPP's customers. 62. Denied. It is denied that Defendant Hart has refused to cease soliciting MPP's customers while he is employed by Colt or that he solicited them at all. 63. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 64. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 65. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. WHEREFORE, Defendant Kevin Hart demands judgment against Plaintiff, together with costs of suit. COUNT II: TORTIOUS INTERFERENCE WITH CONTRACT MPP v. COLT 66 - 71. These averments are directed to Defendant Colt and not to Defendant Hart. COUNT III: VIOLATION OF PENNSYLVANIA UNIFORM TRADE SECRET ACT MPP v. HART 72. Defendant Hart incorporates his answers to Paragraphs 1 through 65 herein by reference. 73. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 74. Denied. This averment is a legal conclusion to which no answer is required but to the extent an answer is required it is specifically denied and strict proof thereof is demanded at the trial of this case. 9 75. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 76. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. 77. Denied. It is specifically denied that Defendant Hart misappropriated MPP's confidential information or that he used confidential information to solicit business for MPP's competitor, Colt. 78. Denied. It is specifically denied that Defendant Hart misappropriated and used any of MPP's confidential information. Further, after reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the rest of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 79. Denied. It is specifically denied that Defendant Hart misappropriated and used any of MPP's confidential information. 80. Denied. This is a legal conclusion to which no answer is required. 81. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof is demanded at the trial of this case. WHEREFORE, Defendant Kevin Hart demands judgment against Plaintiff, together with attorney's fees and costs of suit. 10 NEW MATTER AND COUNTERCLAIM 82. Defendant Hart has worked in the business of selling and distributing plumbing parts and maintenance repair parts for twenty (20) years. 83. Prior to working with Mark's Plumbing Parts ("MPP"), Defendant Hart worked with Colt Plumbing. 84. Many of the customers that Defendant Hart dealt with at MPP, Defendant Hart had a long-standing relationship with having called on them when he worked with Colt or other plumbing supply companies. 85. Defendant Hart did not intentionally violate any terms or conditions of any Non- Competition/Nondisclosure Agreement that he signed while employed at MPP. 86. The non-solicitation, nondisclosure and non-competition provisions as contained in the Non-Competition/Nondisclosure Agreement between MPP and Defendant Hart are unreasonable in its restrictions, its scope and duration. 87. To the extent that any customers formerly of MPP placed any orders with Defendant Hart while he was employed at Colt, Defendant Hart in no way solicited those orders; to the extent that any of these orders are in any way violative of the Non-Competition/Nondisclosure Agreement, which Defendant Hart denies, he merely accepted those orders from customers who sought him out. 88. The enforcement of the Non-Competition/Nondisclosure Agreement causes undue burden upon Defendant Hart in that Defendant Hart's only employment for in excess of two decades has been the sale of plumbing supplies and maintenance services to various customers, all of which are known to multiple competitors in the trade. 11 89. If any customer orders submitted to Defendant Hart are determined to be in violation of his Non-Competition/Nondisclosure Agreement, the value of those orders at most are de minimus and MPP suffers no real harm at the loss of those orders. 90. Defendant Hart asserts the following affirmative defenses: A. Illegality; B. Failure of consideration; and C. Justification. COUNTERCLAIM 91. Defendant Hart incorporates his answers to Paragraphs 1 through 65 and 72 through 81 herein by reference as well as New Matter Paragraphs 82 through 90 herein. 92. Plaintiff has made a claim under Count III of the Complaint that Defendant Hart violated the Pennsylvania Uniform Trade Secrets Act. 93. Defendant Hart has not misappropriated any trade secrets and Plaintiff was well aware of this fact at the time that it filed this law suit. 94. Plaintiff conducted an emergency hearing at which time it had the opportunity to conduct a thorough cross-examination of Defendant Hart and it became readily apparent that Defendant Hart has not made any misappropriation in violation of the Pennsylvania Uniform Trade Secrets Act nor has he violated the Pennsylvania Uniform Trade Secrets Act in any way. 95. Nonetheless, Plaintiff has continued to pursue a claim under the violation of the Pennsylvania Uniform Trade Secrets Act against Defendant Hart. 96. Plaintiff's pursuit of a claim of misappropriation under the Pennsylvania Uniform Trade Secrets Act against Defendant Hart is made in bad faith. 12 97. Under 12 Pa. C.S. Section 5305, Defendant Hart is entitled to reasonable attorney's fees, expenses and costs as the claim of misappropriation is made in bad faith. 98. Defendant Hart has engaged Bangs Law Office, LLC, to defend him in this law suit and in particular a claim under the Pennsylvania Uniform Trade Secrets Act, and as such has incurred legal costs and will continue to incur legal costs to defend this case. WHEREFORE, Defendant Kevin Hart requests this Honorable Court to award Defendant Hart his reasonable attorney's fees, expenses and costs under 12 Pa. C.S. Section 5305, together with other relief as deemed appropriate by the Court. Respectfully submitted, BANGS LAW OFFICE, LLC ICH EL L. BANGS Attorney for Defendant Kevi Hart 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 13 VERIFICATION I hereby verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: T 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing DEFENDANT KEVIN HART'S ANSWER, NEW MATTER AND COUNTERCLAIM, by depositing a copy of the same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed to the following: Schaun D. Henry, Esquire McNees Wallace & Nurick 100 Pine Street Harrisburg, PA 17108-1166 Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 DATE: 1 ~1 " 15 ?'ILED-C?i` I~I%E_ C' TIE PIROTI-IONOTARO' Schaun D. Henry I. D. No. 80597 Kimberly A. Selemba I.D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 2042 M, P,Y 23 PM i : 51 CUMBERLAND COUNTY PENNSYLVANIA Attomeys for Plaintiff JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff V. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 12-1137 Previously Assigned to Judge Hess Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts ("MPP"), by and through its attorneys, McNees Wallace & Nurick LLC, hereby files the following Motion to Dismiss the Counterclaim filed against it by Defendant Kevin Hart. 1. On or about February 22, 2012, MPP commenced this action by filing a Complaint against Defendant Kevin Hart ("Hart") and Colt Plumbing Company, d/b/a Colt Plumbing Specialties ("Colt"). 2. On or about March 30, 2012, MPP filed an Amended Complaint against Hart and Colt. 3. In the Amended Complaint, MPP asserts claims for: Breach of Contract against Hart (Count 1); Tortious Interference with Contract against Colt (Count II); and, Violation of the Pennsylvania Uniform Trade Secret Act against Hart (Count III). See Amended Complaint. 4. On or about January 10, 2005, Hart accepted employment with MPP as a District Manager, with responsibility for selling plumbing parts and repair maintenance parts in certain regions of Pennsylvania and Maryland. 5. As part of, and contemporaneously with, his accepting employment as a District Manager for MPP, Hart executed a Non-Competition/Nondisclosure Agreement with MPP. See Exhibit B to Amended Complaint. 6. The Non-Competition/Nondisclosure Agreement acknowledges that Hart may receive or develop confidential information during his employment with MPP. Specifically, the Non-Competition/Nondisclosure Agreement provides, in relevant part: Employee acknowledges that the Company has agreed to provide him/her, and he/she shalF receive from the Company, special training and knowledge. Employee acknowledges that included in the special knowledge to be received is the confidential information indentified in paragraph 2, below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement... . See Exhibit B to Amended Complaint, 11. 7. The Non-Competition/Non-Disclosure Agreement defines "confidential information" as: ...any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of -2- the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit B to Amended Complaint, 12. 8. The Non-Competition/Non-Disclosure Agreement expressly prohibits Hart from disclosing any confidential information to which he had access during his employment with MPP. Specifically, the Agreement provides, in pertinent part: The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information... The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit B to Amended Complaint, $ 2. 9. The Non-Competition/Nondisclosure Agreement also includes a "Covenant Not To Compete" provision, which prohibits Hart from, inter alia, soliciting -3- MPP's customers and clients for a period of one year after Hart's separation from employment with MPP: Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. See Exhibit B to Amended Complaint, 11. 10. The non-solicitation clause is further bolstered by a provision that allows for an extension of the prohibition against soliciting MPP's customers in the event of a breach. Specifically, the Non-Competition/Nondisclosure Agreement provides: Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and its affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants... Further, during any period in which the Employee is in breach of the covenant not to compete specked in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. See Exhibit B to Amended Complaint, $ 3. 11. Hart's job responsibilities while employed by MPP included solicitation of both new and existing customers for plumbing parts and maintenance repair parts in Hart's territory. -4- 12. Due to the nature of his employment as a District Manager for MPP, during his employment with MPP, Hart had access to and was given confidential information of MPP, including information about MPP's operations, customers, and pricing. 13. This level of detailed information gave Hart a competitive advantage and helped to make him a successful salesman of MPP's products. 14. The described information is highly confidential, proprietary, and is not disclosed outside of MPP, and MPP has taken numerous steps to protect the confidentiality of its confidential information, including, but not limited to, requiring its employees, before being provided access to the information, to execute non- competition/non-disclosure agreements, limiting internal and external access to the confidential information, informing employees that certain information is confidential, and otherwise taking steps to protect the dissemination and use of the confidential information. 15. Hart resigned employment with MPP on February 25, 2011. 16. Soon after his employment relationship ended with MPP, Hart accepted employment with North Eastern Supply, a direct competitor of MPP in selling plumbing parts and maintenance repair parts. 17. MPP suspected that Hart may have been calling on or otherwise soliciting sales from customers of MPP on behalf of and while he was employed by North Eastern Supply. 18. Hart accepted employment with Colt in July 2011. -5- 19. Colt is a competitor of MPP in selling plumbing parts and maintenance repair parts in Pennsylvania. 20. Hart is employed as a sales representative or similar capacity for Colt in Pennsylvania. 21. Hart has been soliciting MPP's customers in Pennsylvania on behalf of Colt. Specifically, Hart has been soliciting, on behalf of Colt, MPP's customers in the territory where Hart was assigned while working with MPP. 22. In conjunction with his improper solicitations of MPP's clients while working for Colt, in violation of the Non-Competition/Nondisclosure Agreement, Hart is using or divulging MPP's trade secrets and other confidential and proprietary information to Colt, allowing it to compete unfairly with MPP. 23. MPP has a legitimate, protectable interest in, inter alia, the confidential information outlined above, including, but not limited to, the names and addresses of any customers and clients of MPP, as that information has economic and competitive value to MPP. 24. On or about May 11, 2012, Hart filed an Answer with New Matter and Counterclaim against MPP. 25. In his Counterclaim, Hart alleges that MPP brought its claim for violation of the Pennsylvania Uniform Trade Secrets Act in bad faith. See Hart's Answer with New Matter and Counterclaim. -6- 26. Hart alleges that MPP knew, at the time that it filed its lawsuit against Hart and Colt, that Hart had not misappropriated any of MPP's trade secrets. See Hart's Counterclaim, 193. 27. Hart further alleges that there was no evidence of Hart's misappropriation adduced at the injunction hearing that was held in this matter. See Hart's Counterclaim, 194. 28. At the time that it filed this lawsuit, MPP had a good faith basis for believing that Hart had been misappropriating MPP's confidential information, such as its customers' names and contact information, by using that information to solicit business on behalf of Colt. 29. MPP believes, and therefore avers, that Hart had been using MPP's confidential customer information in conjunction with his improper solicitation of MPP's customers. 30. The injunction hearing in this matter was intended to and did focus upon Hart's violations of the Non-Competition/Nondisclosure Agreement by soliciting MPP's customers on behalf of Colt during the one-year period after the separation of his employment with MPP; it did not focus on, nor was it intended to focus on, Hart's violations of the Pennsylvania Uniform Trade Secrets Act. 31. At the time of Hart's filing of his Counterclaim against MPP, no discovery has been taken. -7- 32. During discovery, MPP will have the opportunity to discover facts to support its good faith belief that Hart had violated the Pennsylvania Uniform Trade Secrets Act by misappropriating MPP's confidential customer information. 33. Rule 1023.1 of the Pennsylvania Rules of Civil Procedures states, in pertinent part: (c) The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. See Pa.R.C.P. No. 1023.1. 34. The explanatory comment to Rule 1023.1 expresses that a party is allowed to conduct further investigation and discovery into claims which the party believes is valid at the time of the filing. Specifically, the comment states: This rule recognizes that sometimes a litigant may have good reason to believe that a claim or defense is valid but may need discovery, formal or informal, to gather and confirm the evidentiary basis for the claim or defense. See Pa.R.C.P. No. 1023.1, explanatory comment. -8- 35. Furthermore, the explanatory comment notes that: If evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention. Rule 1023.1(c) does not require a formal amendment to pleadings for which evidentiary support is not obtained, but rather calls upon a litigant not thereafter to advocate such claims or defenses. See Pa.R.C.P. No. 1023.1, explanatory comment. 36. As stated above, discovery in this matter has not yet commenced, as Hart just filed his Answer to the Complaint on May 11, 2012. 37. MPP has not yet had a reasonable opportunity for further investigation or discovery into its claim that Hart has violated the Pennsylvania Uniform Trade Secrets Act. 38. MPP intends to conduct discovery into this matter to gather factual, evidentiary support for its allegations that Hart used MPP's confidential customer information, provided to him while he was employed by MPP, to assist him in his improper solicitations of MPP's customers during the one-year non-solicitation period provided for in the Non-Competition/Nondisclosure Agreement. 39. Hart's Counterclaim alleging that MPP brought its claim for violation of the Pennsylvania Uniform Trade Secrets Act in bad faith, wherein he seeks costs and attomeys' fees, is frivolous and meritless, and should be dismissed. -9- WHEREFORE, Plaintiff John W. Gasparini, Inc., dPo/a Mark's Plumbing Parts requests that the Court dismiss Defendant Kevin Hart's Counterclaim with prejudice, and award Plaintiff attorneys' fees, costs, and such other relief as deemed appropriate by the Court. McNEES WALLACE & NURICK LLC By IN! A 14f4 Sch un D. enry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Dated: May 22, 2012 Attomeys for Plaintiff -10- CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hulbert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 Wade D. Manley, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17403 Michael L. Bangs, Esquire Bangs Law Office, LLC 429 South 18th Street Camp Hill, PA 17011 t 0 1 Kimberly A. Selemba Dated: May 22, 2012 E, - Z. ICE. nOTHONOTARY Schaun D. Henry I. D. No. 80597 Kimberly A. Selemba I.D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff v. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants ,nn,12 Al 23 PM t'- 55 t'UMBERLAND COUNTY PENNSYLVANIA Attomeys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 12-1137 P A , . F'S RESPONSE TO NEW MATTER FILED BY DEFEN MIT K EM HART Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts ("MPP"), by and through its attorneys, McNees Wallace & Nurick LLC, files the following Response to New Matter filed by Defendant Kevin Hart. Response to Now Matbsr 82. After reasonable investigation, MPP is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, denies the same. 83. Admitted upon information and belief. 84. After reasonable investigation, MPP is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, denies the same. 85. Denied. The averments of this Paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this Paragraph are denied. Defendant Hart intentionally violated the Non- Competition/Nondisclosure Agreement he signed while working for MPP by soliciting MPP's customers while working for Colt and by misappropriating MPP's trade secrets and confidential information. 86. Denied. The averments of this Paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this Paragraph are denied. The Non-Competition/Nondisclosure Agreement that MPP signed while working for MPP is reasonable in its restrictions, scope and duration. The "Covenant Not to Compete" provision in the Non- Competition/Nondisclosure Agreement prohibited Hart from, inter alia, soliciting MPP's customers and clients for only a one-year period after Hart's separation from employment with MPP. 87. Denied. The averments of this Paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this Paragraph are denied. It is denied that Hart did not solicit MPP's customers during the one-year period after the separation of his employment with MPP -2- and while working for Colt. To the contrary, Hart has been intentionally and actively soliciting MPP's customers in Pennsylvania on behalf of Colt. 88. Denied. The averments of this Paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this Paragraph are denied. It is denied that enforcement of the Non- Competition/Nondisclosure Agreement causes undue burden upon Hart. To the contrary, the restrictions in the Non-Competition/Nondisclosure Agreement are reasonable in scope and duration, and prevent Hart from soliciting MPP's customers with whom he worked on behalf of MPP only for a period of one year after the separation of his employment with MPP. 89. Denied. The averments of this Paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this Paragraph are denied. It is denied that the value of the customer orders submitted to Hart in violation of the Non-Competition/Nondisclosure Agreement are de minimus, and that MPP has suffered no real harm. To the contrary, Hart's actions in violating the Non-Competition/Nondisclosure Agreement have caused MPP damages, such as loss of customers, loss of customer good will and loss of revenue. 90. Denied. The averments of this Paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, it is denied that illegality, failure of consideration, or justification are valid defenses for Hart. WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that judgment be entered in its favor and against Defendant Kevin Hart, and -3- that compensatory damages be awarded to Plaintiff in a sum in excess of $50,000.00, together with costs and such other relief as deemed appropriate by the Court. McNEES WALLACE & NURICK LLC 11o 11 By 2? U Zw( Scha n D. Henry I.D. No. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Dated: May 22, 2012 Attorneys for Plaintiff -4- L!i? a-AiR Subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unswom falsification to authorities, I, Marvin Rubac, hereby certify that I am the President of Mark's Plumbing Parts. In that capacity, I am authorized to make this Verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Mark's Plumbing Parts By: Mani Rubac Dated: May/t, 2012 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hulbert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 Wade D. Manley, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17403 Michael L. Bangs, Esquire Bangs Law Office, LLC 429 South 18"' Street Camp Hill, PA 17011 Kimberly . Selemba Dated: May 22, 2012 Schaun D. Henry I.D. No. 80597 Kimberly A. Selemba I . D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 r ,. Attorneys for Plaintiff JOHN W. GASPARINI, INC., IN THE COURT OF COMMON PLEAS d/b/a MARK'S PLUMBING PARTS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No. 12-1137 KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Previously Assigned to Judge Hess Defendants PLAINTIFF'S PRELIMINARY OBJECTIONS TO COUNTERCLAIM FILED BY DEFENDANT KEVIN HART Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts ("MPP"), by and through its attorneys, McNees Wallace & Nurick LLC, hereby files the following Preliminary Objections to the Counterclaim filed against it by Defendant Kevin Hart. Procedural History 1. On or about February 22, 2012, MPP commenced this action by filing a Complaint against Defendant Kevin Hart ("Hart") and Colt Plumbing Company, d/b/a Colt Plumbing Specialties ("Colt"). 2. On or about March 30, 2012, MPP filed an Amended Complaint against Hart and Colt. 3. In the Amended Complaint, MPP asserts claims for: Breach of Contract against Hart (Count 1); Tortious Interference with Contract against Colt (Count 11); and, Violation of the Pennsylvania Uniform Trade Secret Act against Hart (Count III). See Amended Complaint. 4. On or about May 12, 2012, Hart filed an Answer, New Matter, and Counterclaim against MPP. Factual Background 5. On or about January 10, 2005, Hart accepted employment with MPP as a District Manager, with responsibility for selling plumbing parts and repair maintenance parts in certain regions of Pennsylvania and Maryland. 6. As part of, and contemporaneously with, his accepting employment as a District Manager for MPP, Hart executed a Non-Competition/Nondisclosure Agreement with MPP. A true and correct copy of this Non-Competition/Nondisclosure Agreement is attached hereto as Exhibit "A." 7. The Non-Competition/Nondisclosure Agreement acknowledges that Hart may receive or develop confidential information during his employment with MPP. Specifically, the Non-Competition/Nondisclosure Agreement provides, in relevant part: Employee acknowledges that the Company has agreed to provide him/her, and he/she shall receive from the Company, special training and knowledge. Employee acknowledges that included in the special knowledge to be received is the confidential information indentified in paragraph 2, below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement... . See Exhibit A, ¶ 1. -2- 8. The Non-Competition/Non-Disclosure Agreement defines "confidential information" as: ...any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company,. See Exhibit A, ¶ 2. 9. The Non-Competition/Non-Disclosure Agreement expressly prohibits Hart from disclosing any confidential information to which he had access during his employment with MPP. Specifically, the Agreement provides, in pertinent part: The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information... The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, -3- or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. See Exhibit A, ¶ 2. 10. The Non-Competition/Nondisclosure Agreement also includes a "Covenant Not To Compete" provision, which prohibits Hart from, inter alia, soliciting MPP's customers and clients for a period of one year after Hart's separation from employment with MPP: Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. See Exhibit A 11. 11. The non-solicitation clause is further bolstered by a provision that allows for an extension of the prohibition against soliciting MPP's customers in the event of a breach. Specifically, the Non-Competition/Nondisclosure Agreement provides: Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and its affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants... Further, during any period in which the Employee is in breach of the covenant not to compete specified in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. See Exhibit A, % 3. -4- 12. Hart's job responsibilities while employed by MPP included solicitation of both new and existing customers for plumbing parts and maintenance repair parts in Hart's territory. 13. Due to the nature of his employment as a District Manager for MPP, during his employment with MPP, Hart had access to and was given confidential information of MPP, including information about MPP's operations, customers, and pricing. 14. This level of detailed information gave Hart a competitive advantage and helped to make him a successful salesman of MPP's products. 15. The described information is highly confidential, proprietary, and is not disclosed outside of MPP, and MPP has taken numerous steps to protect the confidentiality of its confidential information, including, but not limited to, requiring its employees, before being provided access to the information, to execute non- competition/non-disclosure agreements, limiting internal and external access to the confidential information, informing employees that certain information is confidential, and otherwise taking steps to protect the dissemination and use of the confidential information. 16. Hart resigned employment with MPP on February 25, 2011. 17. Soon after his employment relationship ended with MPP, Hart accepted employment with North Eastern Supply, a direct competitor of MPP in selling plumbing parts and maintenance repair parts. -5- 18. MPP suspected that Hart may have been calling on or otherwise soliciting sales from customers of MPP on behalf of and while he was employed by North Eastern Supply. 19. Hart accepted employment with Colt in July 2011. 20. Colt is a competitor of MPP in selling plumbing parts and maintenance repair parts in Pennsylvania. 21. Hart is employed as a sales representative or similar capacity for Colt in Pennsylvania. 22. Hart has been soliciting MPP's customers in Pennsylvania on behalf of Colt. Specifically, Hart has been soliciting, on behalf of Colt, MPP's customers in the territory where Hart was assigned while working with MPP. 23. In conjunction with his improper solicitations of MPP's clients while working for Colt, in violation of the Non-Competition/Nondisclosure Agreement, Hart is using or divulging MPP's trade secrets and other confidential and proprietary information to Colt, allowing it to compete unfairly with MPP. 24. MPP has a legitimate, protectable interest in, inter alia, the confidential information outlined above, including, but not limited to, the names and addresses of any customers and clients of MPP, as that information has economic and competitive value to MPP. Preliminary Objection Pursuant to Rule 1028(a)(4) - Demurrer 25. Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure allows a party to file a preliminary objection for legal insufficiency of a pleading (demurrer). -6- 26. In his Counterclaim, Hart alleges that MPP brought its claim for violation of the Pennsylvania Uniform Trade Secrets Act in bad faith. See Hart's Answer with New Matter and Counterclaim. 27. Hart alleges that MPP knew, at the time that it filed its lawsuit against Hart and Colt, that Hart had not misappropriated any of MPP's trade secrets. See Hart's Counterclaim, ¶ 93. 28. Hart further alleges that there was no evidence of Hart's misappropriation adduced at the injunction hearing that was held in this matter. See Hart's Counterclaim, ¶ 94. 29. At the time that it filed this lawsuit, MPP had a good faith basis for believing that Hart had been misappropriating MPP's confidential information, such as its customers' names and contact information, by using that information to solicit business on behalf of Colt. 30. MPP believes, and therefore avers, that Hart had been using MPP's confidential customer information in conjunction with his improper solicitation of MPP's customers. 31. The injunction hearing in this matter was intended to and did focus upon Hart's violations of the Non-Competition/Nondisclosure Agreement by soliciting MPP's customers on behalf of Colt during the one-year period after the separation of his employment with MPP; it did not focus on, nor was it intended to focus on, Hart's violations of the Pennsylvania Uniform Trade Secrets Act. -7- 32. At the time of Hart's filing of his Counterclaim against MPP, no discovery has been taken. 33. During discovery, MPP will have the opportunity to discover facts to support its good faith belief that Hart had violated the Pennsylvania Uniform Trade Secrets Act by misappropriating MPP's confidential customer information. 34. Rule 1023.1 of the Pennsylvania Rules of Civil Procedures states, in pertinent part: (c) The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. See Pa. R.C.P. No. 1023.1. 35. The explanatory comment to Rule 1023.1 expresses that a party is allowed to conduct further investigation and discovery into claims which the party believes is valid at the time of the filing. Specifically, the comment states: This rule recognizes that sometimes a litigant may have good reason to believe that a claim or defense is valid but may need -8- discovery, formal or informal, to gather and confirm the evidentiary basis for the claim or defense. See Pa.R.C.P. No. 1023.1, explanatory comment. 36. Furthermore, the explanatory comment notes that: If evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention. Rule 1023.1(c) does not require a formal amendment to pleadings for which evidentiary support is not obtained, but rather calls upon a litigant not thereafter to advocate such claims or defenses. See Pa. R.C.P. No. 1023.1, explanatory comment. 37. As stated above, discovery in this matter has not yet commenced, as Hart just filed his Answer to the Complaint on May 11, 2012. 38. MPP has not yet had a reasonable opportunity for further investigation or discovery into its claim that Hart has violated the Pennsylvania Uniform Trade Secrets Act. 39. MPP intends to conduct discovery into this matter to gather factual, evidentiary support for its allegations that Hart used MPP's confidential customer information, provided to him while he was employed by MPP, to assist him in his improper solicitations of MPP's customers during the one-year non-solicitation period provided for in the Non-Competition/Nondisclosure Agreement. 40. Hart's Counterclaim alleging that MPP brought its claim for violation of the Pennsylvania Uniform Trade Secrets Act in bad faith, wherein he seeks costs and attorneys' fees, is frivolous and meritless, and should be dismissed. -9- WHEREFORE, Plaintiff John W. Gasparini, Inc., d/b/a Mark's Plumbing Parts requests that the Court dismiss Defendant Kevin Hart's Counterclaim with prejudice, and award Plaintiff attorneys' fees, costs, and such other relief as deemed appropriate by the Court. McNEES WALLACE & NURICK LLC n) 1 -1 By Scha D. Henry I. D. N6. 80597 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 717-232-8000 Dated: June 8, 2012 Attomeys for Plaintiff -10- NONCOMPETITION / NONDISCLOSURE AGREEMENT is Non-competition / Nondisclosure Agreement (the "Agreement's is entered into this day o 20 e by and between JOHN W. GASPARINI, INC. d/b/a. MARK'S PLUNMNd (hereinafter referred to as the "Company„) and Kee t t,?s 4jjfrr (hereinafter referred to as the "Employee"). RECITALS A. Contemporaneously with the execution of the Agreement, Company has offered Employee a position with the Company as a District Manager (a/k/a sales representative) and Employee has accepted that position. B. The Employee and the Company recognize that as a sales representative the Employee will necessarily have access to the Company's proprietary information, described below, and they further recognize that having had access to such information the Company will be damaged if the Employee ever uses the information in competition with the Company. C. Employee and the Company therefore desire to set forth in this Agreement the conditions under which Employee shall have access to such proprietary information and the limitations to be placed on Employee upon termination of the employment relationship. NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and promises contained herein, the parties hereby agree as follows: 1. Employee acknowledges that the Company has agreed to provide him/her, and he/she shall receive from the Company, special training and knowledge. -- -- -- Bmploye?$C1at?wi?ttg?s^df8t #flcltidezi in tti??clt7ut?vvTe tb-be 4 -- s the confidential information identified in paragraph 2 below. Employee acknowledges that this confidential information is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the Company for the enforcement of the Agreement. Therefore, Employee agrees that during his/her employment with the Company and for a period of one (1) year after any termination of the employment relationship between Employee and the Company, Employee will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in the promotion, sale, and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that employee called on, or was assigned to the employee. Employee represents to the Company that the enforcement of the restriction contained in this paragraph 1 would not be unduly burdensome to Employee and that in order to induce the Company to . employ the Employee, Employee further represents and acknowledges the Employee is willing and able to compete calling on other potential customers employee may develop other than clients or customers employee called on, while with the company. 2. The Employee recognizes and acknowledges that in connection with his/her initial and ongoing training, the Company will provide the Employee with access to confidential information of the Company or of certain corporations affiliated with the Company, and that all such information constitutes valuable, special and unique property of the Company and its affiliates that is not generally known or readily ascertainable by independent investigation. The Employee agrees that during the time the Employee is employed by the company and at all times after the termination of the employment relationship the Employee will not, without the prior written consent of the Company, disclose to or authorize or permit anyone under the Employee's direction to disclose to, anyone not properly entitled thereto any of such confidential information. For purposes of the immediately preceding sentence, persons property entitled to such information shall be (a) the board of directors of the Company and such officers, employees and agents of the Company, or any affiliate thereof, to whom such information is furnished in the normal course of business under established policies approved by the Company, and (b) such outside parties as are legally entitled to or are customarily furnished such information, including banking, lending, collection, accounting and data processing institutions or agencies who or which are provided such information in the normal course of business of the Company. The Employee further agrees that upon the termination of the employment relationship between the Employee and the Company, the Employee will not take with him/her or retain, without prior written authorization of the Company, any papers, procedural or technical manuals, customer lists, customer account analysis (including, without limitation, accounts receivable ageing, customer payment histories and customer account activity reports), price books, files or other documents or copies thereof belonging to the Company or any affiliate of the Company, or any materials, supplies, equipment, or furnishings belonging to the Company, or to any affiliate of the Company, or any other confidential information of any kind belonging to the Company or affiliate of the Company. Upon any termination of the employment reI?onslu`p the Employee will 'de`lrvci aiiy and-aili o ffie fofegotngitenii- oo-Wi Company within 10 days. Samples, sample cases, sales rep catalogs, and items not confidential in nature will be billed to the sales rep if such items are not returned within 10 days, and will be deducted from any final compensation due. Employee agrees that in the event of a breach or a violation or a threatened breach or violation of the provisions of paragraph 1 or paragraph 2 above, the remedy at law available to the Company and its affiliates would be inadequate and that the Company and it affiliates shall be entitled to an injunction, without the necessity of posting bond therefore, restraining the Employee from committing a breach or a violation of these covenants. Such right to an injunction shall be cumulative and in addition to, and not in lieu of, any other remedies to which the Company may show itself justly entitled. Further, during any period in which the Employee is in breach of the covenant not to compete specified in paragraph 1, the time period of that covenant shall be extended for an amount of a time equal to that time period that the Employee is in breach thereof. 4. In addition to the restrictions set forth in paragraphs 1 and 2 of this Agreement, Employee shall not while employed by the Company or upon the termination of the employment relationship and for one year thereafter either directly or indirectly (a) make known to any person, firm or corporation, the names and addresses of any of the customers of the Company or any other information pertaining to such persons, (b) call on, solicit or take away, or attempt to call on, solicit or take away any of the customers of the Company upon whom Employee called or with whom Employee became acquainted during Employee's employment by the Company or (c) recruit or hire or attempt to recruit or hire directly or by assisting others, any other employee of the Company or any of its affiliates. The covenants contained in this Agreement will be construed as ancillary to and independent of any other terms or conditions of Employee's employment by the Company and the existence of any claim or cause of action of Employee against the Company or any officer or director or shareholder of the Company, whether predicated on Employee's employment by the Company, the termination of that employment, this Agreement or otherwise, shall not constitute a defense against the enforcement by the Company of the covenants of the Employee contained in this Agreement. 6. The Employee and the Company agree that the limitations contained in paragraph 1 of this Agreement with respect to clients or customers, duration, and scope of activity are reasonable. However, if any court shall determine that the clients or customers, duration, or scope of activity of any restriction contained in this Agreement is unenforceable, it is the intention of the parties that such restrictive covenant set forth herein shall not thereby be terminated but shall be deemed -- ---amZndedto-the?xte?'t?v#t?d't??en?ecif validan? a orcea re--- "-7. The Employee represents and warrants to the Company that Employee is not a party to any agreement that in any way restricts, prohibits or prevents Employee from performing the duties of a sales representative for the Company in the geographic area described on Exhibit "A". WITNESS the execution hereof on the date and year first written above. JOHN W. GASPARM, INC. d/b/a MARK'S PLUMBING PARTS Hy. President ?l T4474( 3 1 S } r O ? ell. 15 p 1? Ire o• 1 He ?•? ? f p• pl ,All e k kr 115 f-WS Q\ V• A r 9 O t j S } M CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hulbert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 Wade D. Manley, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17403 Michael L. Bangs, Esquire Bangs Law Office, LLC 429 South 18th Street Camp Hill, PA 17011 ?/w ?dll Kimberly . Se emba Dated: June 8, 2012 r I PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and :submitted in triplicate) FILE -OFFI-CE L HE PROTHONOTAM TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for thq?? (2 ?? ' : ' Argument Court.) ttit i L CAPTION OF CASE (entire caption must be stated in full) JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBIN PARTS, vs. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, No. 12-1137 ^UMEERLND COUNTY PENN YLVANIA Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs' Preliminary Objections to Counterclaim Filed by Defendant Kevin Hart 2. Identify all counsel who will argue cases: (a) for plaintiffs: Kimberly A. Selemba, Esq., McNees Wallace & Nurick LLC, 100 Pine Street, P.O. Box 1166 (Name and Address) Harrisburg, PA 17108-1166 (b) for defendants: Hulbert X. Gilroy, Esq., Marlson Deardorff Williams Otto Gilroy & Faller 10 E. High St, Carlisle, PA (Name and Address) Michael L. Bangs, Esq., Bangs Law Office, LLC, 429 South 18th Street, Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signatu Kimberly A. Selemba Print your name Plaintiff July 11, 2012 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMIN (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 014 U1 13; TOR -7 -129 9 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of foregoing document was served by first-class mail, postage prepaid, upon the followi Hulbert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 Wade D. Manley, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 Michael L. Bangs, Esquire Bangs Law Office, LLC 429 South 18th Street Camp Hill, PA 17011 ?JUL Kimberly A. Selemba Dated: July 11, 2012 MICHAEL L. BANGS, ES "I I ROTI-JONOTAFtY BANGS 429 South 1 8Sreet CE, LLC ?UL 19 Camp Hill, PA 17011 CUMBERLAND COUNTY (717) 730-7310 PENNSYLVANIA ATTORNEY FOR DEFENDANT KEVIN HART JOHN W. GASPARINI, INC., d/b/a MARK'S PLUMBING PARTS, Plaintiff vs. KEVIN HART and COLT PLUMBING COMPANY, d/b/a COLT PLUMBING SPECIALTIES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-1137 CIVIL CIVIL ACTION ANSWER OF DEFENDANT KEVIN HART TO PLAINTIFF'S PRELIMINARY OBJECTIONS 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that on or about January 10, Defendant Hart accepted employment with MPP as a District Manager with responsibilities selling plumbing parts and repair maintenance parts. The rest of the averment is denied as it relates to the regions alleged in this averment. 6. Admitted in part and denied in part. It is admitted that the document entitled Non- Competition/Nondisclosure Agreement which is representative of three pages appears to be a true and correct copy of the document signed by Defendant Hart. It is specifically denied that the document included the map attached which is also included as Exhibit A. 7. Admitted in part and denied in part. It is admitted that Paragraph 7 accurately reflgts what the document says is attached as Exhibit A. It is denied that the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 8. Admitted in part and denied in part. It is admitted that Paragraph 8 accurately what the document says is attached as Exhibit A. It is denied that the purpose of this avermen? is to prove any other aspect of this matter or as to any interpretation given to that language. 9. Admitted in part and denied in part. It is admitted that Paragraph 9 accurately what the document says is attached as Exhibit A. It is denied that the purpose of this to prove any other aspect of this matter or as to any interpretation given to that language. 10. Admitted in part and denied in part. It is admitted that Paragraph 10 accurately reflects what the document says is attached as Exhibit A. It is denied that the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 11. Admitted in part and denied in part. It is admitted that Paragraph 11 accurately reflects what the document says is attached as Exhibit A. It is denied that the purpose of this averment is to prove any other aspect of this matter or as to any interpretation given to that language. 12. Admitted in part and denied in part. It is admitted that Defendant Hart was responsible for solicitation of both new and existing customers for plumbing parts and maintenance repair parts in Hart's territory. It is denied that the Exhibit A attached to the document reflects Defendant Hart's territory while employed with MPP. is 2 13. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 14. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 15. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 16. Admitted. 17. Admitted. 18. Denied. It is denied that Defendant Hart was calling or otherwise soliciting sales from customers of MPP on behalf of and while he was employed by North Eastern Supply. 19. Admitted. 20. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment as to what the term "competitor" as it relates to this averment and therefore it is denied and strict proof thereof is demanded. 21. Admitted. 22. Denied. It is specifically denied that Defendant Hart has been soliciting, on behalf 4 Colt, any of MPP's customers in any territory where Defendant Hart was assigned while with MPP. 3 23. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 24. This averment is a legal conclusion to which no answer is required. To the extent answer is required it is denied and strict proof thereof is demanded. 25. Admitted. 26. Admitted. 27. Denied as stated. Plaintiff misstates Paragraph 93 of Defendant Hart's C and Defendant Hart incorporates that paragraph by reference. Any other interpretation of that paragraph other than what is stated therein is denied. 28. Denied as stated. Plaintiff misstates Paragraph 94 of Defendant Hart's and Defendant Hart incorporates that paragraph by reference. Any other interpretation of that paragraph other than what is stated therein is denied. 29. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 30. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 31. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 4 32. Admitted in part and denied in part. It is admitted that at the time that Defendant Hart filed his Counterclaim against MPP, no formal discovery as that is defined under the Pennsylvania Rules of Civil Procedure, was taken relative to this matter. The averment is denied to suggest that MPP has conducted no discovery on its own. 33. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 34. Admitted that Paragraph 34 correctly cites the portions of the Rule as listed If the purpose of this averment is to reach any other conclusion, then it is denied. 35. Admitted that Paragraph 35 correctly cites the portions of the Rule as listed If the purpose of this averment is to reach any other conclusion, then it is denied. 36. Admitted that Paragraph 36 correctly cites the portions of the Rule as listed If the purpose of this averment is to reach any other conclusion, then it is denied. 37. Admitted in part and denied in part. It is admitted that at the time that Defendant Hart filed his Counterclaim against MPP, no formal discovery as that is defined under the Pennsylvania Rules of Civil Procedure, was taken relative to this matter. The averment is to suggest that MPP has conducted no discovery on its own. 38. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 39. Denied. After reasonable investigation, Defendant Hart is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded. 40. Denied. It is denied that Defendant Hart's Counterclaim is "frivolous and meritle?s" and that it is appropriate for it to be dismissed at this stage. It is averred that Plaintiff decided pursue a claim under the Pennsylvania Uniform Trade Secrets Act and included, specifically, claim for attorney's fees under Section 5305. Under Section 5305, the court may award reasonable attorney's fees, expenses and costs to the prevailing party if a claim of misappropriation is made in bad faith. Defendant Hart correctly and accurately stated his Counterclaim at this stage of the proceeding and to the extent that after discovery Defendant H ri is successful in his claim for attorney's fees, then under this provision of the Act, he is entitled to receipt of those attorney's fees and costs as claimed. WHEREFORE, Defendant Hart requests that Plaintiffs Preliminary Objections to Defendant Hart's Counterclaim be dismissed. Respectfully submitted, BANGS LAW OFFICE, LLC MICHAEL L. BANGS Attorney for Defendant Kevin 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing ANSWER OF DEFENDANT HART TO PLAINTIFF'S PRELIMINARY OBJECTIONS, by depositing a cc of the same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed the following: Kimberly A. Selemba, Esquire McNees Wallace & Nurick Post Office Box 1166 Harrisburg, PA 17108-1166 Hubert X. Gilroy, Esquire Manson, Deardorff, Williams, Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 DATE:- I il U Z'- 7