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Home My WebLink About04-6107 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PROFESSIONAL RESOURCE GROUP, INC., Plaintiff NO. ()t/ - t/tJ 7 vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty A venue Carlisle, P A 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP,INC., Plaintiff NO. vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW NOTlCIA USTED HA SIDO DEMANDADOIA EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente 0 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 Ie advierte de que si usted faHa 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 0 cualquier otra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIA T AMENTE, SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERlGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty A venue Carlisle, P A 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PROFESSIONAL RESOURCE GROUP,INC., Plaintiff NO. o tf - (P / O'{ vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Professional Resource Group, Inc. (hereinafter "PRG"), is a Pennsylvania corporation with its principal business address at 4076 Market Street, Suite 213, Camp Hill, Pennsylvania, 17011. 2. Defendant, E & E IT Consulting Services, Inc. (hereinafter "E&E"), is a Pennsylvania corporation with its principal business address at 3901 Hartzdale Drive, Camp Hill, Pennsylvania, 17011. 3. Defendant, John L. Batzer, Jr. (hereinafter "Batzer"), is an adult individual residing at 1819 Ridgeview Drive, Carlisle, Pennsylvania, 17013, 4. PRG is in the specialized business of placement of skilled information technology professionals on a contract basis. 5. Defendant Batzer entered into an Hourly Employment Agreement with PRG on May 14, 2002 (see Exhibit "A" for a true and correct copy of said Agreement incorporated herein), -1- and further accepted assignment to work for a PRG client, Defense Distribution Center (hereinafter "DDC") at New Cumberland, Pennsylvania. 6. Paragraph 6(d) of the Hourly Employment Agreement entitled TERMINATION required Batzer to provide three (3) weeks notice to PRG (prior to notifying client) of his intent to terminate the Agreement. 7. Paragraph 12 of the Hourly Employment Agreement entitled COVENANT NOT TO COMPETE set forth that during the term ofthe Hourly Employment Agreement and for a period of twelve months following this Agreement, Batzer agrees not to solicit or accept any employment or work from any organization or person who was introduced to Batzer through PRG. 8. On or about June 30, 2004, Batzer resigned from PRG and started work for E & E with Batzer being specifically assigned to PRG's client, DDC. 9. E & E is a competitor ofPRG. COUNTI-BREACHOFCONTRACT (PRG vs. Batzer) 10. The pleadings set forth in paragraphs 1 through 9 are incorporated herein as if fully set forth. 11. When Batzer resigned from PRG, he did not give three (3) weeks notice to PRG in violation of the Hourly Employment Agreement. 12. Batzer resigned after the bid process at DDC was completed and the bid was awarded, -2- 13. Batzer had orally informed PRG that he would continue to work with PRG during the bid process creating the belief that PRG could successfully bid and expect to be awarded the business by DDC. 14. Due to Batzer's failure to honor the terms of the Hourly Employment Agreement (i. e., three weeks notice), PRG had no notice that Batzer intended to be presented in a competitive manner through a competing company, which negatively impacted PRG' s ability to provide a competitive bid. 15. Batzer has additionally breached the non compete provision in the Hourly Employment Agreement by immediately accepting employment with E & E. 16. When the federal contract at DDC went out for bid, and was ultimately awarded to E & E, the requirement of the bid was as follows: · In-depth knowledge and hands on experience with the Web Interwoven Content Management System (CMS). The expertise on the subject matter would include the content management application (CMA), the content delivery application (CDA), and the interface with the DDC Web architecture and e-Workplace is required. · Knowledge and experience with the DDC Web architecture, implementation, and DDC-unique method is absolute necessary. . Familiarity with the DLA-wide enterprise structure, namely DLA e-Workplace and DLA Knowledge Management initiatives and mission. . Ability to train DDC J-6 and other DDC Web Content Managers to use the Web Interwoven CMS or FrontPage 2003. · Ability to use FrontPage 2003, Visio 2000 and Microsoft Office 2003 (PowerPoint, Access, Excel, etc.) and Microsoft Windows 2003 is essential. Previous training and/or usage of these products are assumed. · Knowledge and implementation of ASP pages, JavaScript and basic SQL database connections. · Must have excellent communications skills, as face-to-face interaction with people, the use of the telephone, and the use of e-mail is essential and a prerequisite of the position. · Knowledge and experience in the following technical support areas are required: -3- o Web-based Application Development and Content Management o E-Workplace, eBusiness and eCommerce development and support, including but not exclusive to B2B, B2C, B2E, and B20 o IT Supply Chain Management o Information Assurance o Firewall Administration and Support o Network and Server Administration o PC Hardware and Software Support o Server Hardware and Software Support o Storage Area Network (SAN) Support o Telecommunications (LAN and/or WAN, Data and/or Voice) Support o Disaster Recovery/Continuity of Operations . In-depth knowledge of Rehabilitation Act Amendments of 1998 - Section 508 (IA W Section 508 Standards) and ability to comply with web pages is required. . A good past performance record in performing for DLA, or DDC is required. 17. Batzer was the only individual with the experience and ability to comply with the necessary criteria for the position. 18, Batzer was introduced to the client, DDC, by PRO through his prior work history at the identical location. 19. Batzer's breach of the non compete language has caused damages to PRO for the one-year period in the amount of$16,048.00. WHEREFORE, PRO respectfully requests this Court to enter judgment in its favor and against Batzer in the amount of $16,048.00 plus costs and such other reliefthis Court deems just. COUNT II - TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS (PRO vs. E & E) 20. The pleadings set forth in paragraphs 1 through 19 are incorporated herein as if fully set forth. -4- 21. A valid employment contract existed between PRG and Batzer that contained a termination clause and non compete language. 22. Prior to hiring Batzer, E & E knew or should have known about the non compete language in Batzer's Hourly Employment Agreement with PRG because it is standard procedure in this highly technical industry. 23, E & E's hiring of Batzer directly interfered with Batzer's performance and obligations of his employment agreement with PRG. 24. E & E's hiring of Batzer and its interference with the contractual terms between PRG and Batzer were improper. 25. PRG suffered actual harm by E & E's interference with the contractual relations between PRG and Batzer. 26. PRG suffered damages for lost profits in the amount of$16,048.00. WHEREFORE, PRG respectfully requests this Court to enter judgment in its favor and against E & E in the amount of $16,048.00 plus costs and such other relief this Court deems just. COUNT III - TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONSHIP (PRG vs. E & E) 27. The pleadings set forth in paragraphs 1 through 26 are incorporated herein as if fully set forth. 28. PRG had a prospective contractual relationship with DDC due to the highly technical requirements of the position. -5- 29. E & E's actions of hiring Batzer in violation ofthe non compete was done with the intent or purpose to harm PRO by preventing the option years of the contract to occur. 30. E & E had no right, privilege, or justification in hiring Batzer to work in a position that was clearly in direct violation of the non compete language Batzer was subject to. 31. PRO had a reasonable likelihood or probability of receiving the option years of the contract due to its pre-existing relationship with DDC. 32. PRO suffered actual harm resulting from E & E's conduct. 33. PRO suffered damages for lost profits as follows: A. Option Year One - $13,548.00; and B. Option Year Two - $11,548.00. WHEREFORE, PRO respectfully requests this Court to enter judgment in its favor and against E & E in the amount of $25,096.00 plus costs and such other relief this Court deems just. Respectfully submitted, LAW OFFICES OF CRAIO A. DIEHL Dated: J3/~ jUt By: ~O.tr:dt Crai~ A.ODiehl, Esquire Attorney ID No. 5280 I 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiff -6- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP,INC., Plaintiff NO. VS. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW VERIFICATION I, ROBERT P. NELSON, PRESIDENT OF PROFESSIONAL RESOURCE GROUP, INC., VERIFY that the statements set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. ~4904 relating to unsworn falsification to authorities. PROFESSIONAL RESOURCE GROUP, INC. Dated: 1.2.?~7<' By: ~//4 R:~; .~so~, President PROFESSIONAL RESOURCE GROUP, INC. Computer STafjing and Sen'ices HOURL Y EMPLOYEE AGREEMENT NO, 2203 AGREEMENT made on Mav 14,2002 between PROFESSIONAL RESOURCE GROUP, 1Ne., hereinafter referred to as "PRG", and John L. Batzer, Jr., hereinafter referred to as the "Consultant". This agreement supersedes any and all Agreements previously signed with PRO and confirms your agreement to terms and conditions of employment stated herein. STATEMENT OF PRG BUSINESS: PRO offers the services of experienced professional personnel (consultants) on a temporary basis to clients who agree to pay applicable fees for agreed to services. 1. CLIENT: PRO wishes to provide services of Consultant to various clients per PRO agreement with said clients. Consultant agrees to accept an initial assignment with DDC, New Cumberland. 2. TERM: This agreement shall commence on date written above. This agreement will remain in effect until terminated by either party by means set forth in Paragraph 6. Consultant agrees to report to Client's place of business to commence Client contract on June 17,2002 or ASAP Thereafter. 3 . COMPENSATION: Compensation will be at the rate of $29.60 per hour worked and billed to client. PRO is under no obligation to pay for hours not approved by or billed to client. All billable time must be repOlied using PRO approved timesheets which must be approved and signed by client before processing. PRO workweeks run Saturday through Friday and pay periods span two weeks. Paychecks are produced and dated for the Wednesday following pay period. 4. DUTIES OF CONSULTANT: Consultant agrees to perform duties per Client Service Agreement and as client reasonably requests and agrees to comply with all applicable rules governing conduct at Client's place of business. 5. WORK SCHEDULE: Consultant agrees to observe Clients normal working hours. Subject to explicit Client approval, start and end times may be varied as required. 6. TERMINATION: This agreement shall be subject to termination by any of the following means: a) On TBD, or otherwise by mutual agreement of PRG and Consultant. Work done after this date signifies agreement that this contract continues in effect until the last day worked. b) When the Client no longer needs or desires services of Consultant. c) By PRO for cause, for performance unsatisfactory to Client, or otherwise upon Client's request, effective upon notice. d) By Consultant upon three (3) weeks notice to PRG (prior to notifying Client), PRO is responsible for notifying Client. 7. ILLNESS, VACATION, PERSONAL TIME: Consultant will notify Client and PRO any day that he/she is unable to work, Vacation requests are to be made to Client and confirmed with PRG, Page 1 of2 4076 Market Street Suite 2] 3 717-612-9ROO Fax 717-730-o08R Camp Hill, PA l70]] prg@prgcorp.com 8. PERSONAL AUTO USE: Use of personal auto at request of Client is at discretion of Consultant. Consultant is responsible for proper insurance coverage and PRG shall not be liable or obligated for damages or losses sustained by Consultant under any circumstance. 9, LIABILITY: PRG is not responsible for any loss or damage suffered by client by reason of the negligence or other unauthorized act of the consultant in the scope of tile performance of assigned duties, 10. EXPENSES: Consultant will not incur any expenses chargeable to Client or PRG without prior authorization, 11. NON-DISCLOSURE: Consultant agrees to sign agreement not to disclose confidential information relating to Client's business upon request of Client. 12. COVENANT NOT TO COMPETE: During the term of this Agreement and for a period of twelve months following this Agreement, Consultant agrees not to solicit or accept any employment or work from any organization or person who was introduced to Consultant through PRG. 13. WORK PRODUCT: Work in process, associated materials and work product produced while employed by PRG is exclusive property of PRG or PRG client if so designated. 14. EEOC: PRG pledges to strive to eliminate discrimination in employment. Assignments will be made solely on the basis of qualifications without regard to race, color, creed, national origin, age or sex. 15. SEVERABILITY: Each provision of this Agreement is severable. The invalidity or unenforceability of one provision shall not affect the validity or enforceability of any other provision, 16. WAIVER: IfPRG should waive employees breach of any provision of this Agreement, such waiver shall not be construed as a waiver of any subsequent breach of any provision of this Agreement. 17. ENTIRE AGREEMENT: This document contains the entire Agreement of the parties and may be changed only by an Agreement in writing signed by both parties, 18. DISPUTES: It is agreed that disputes will be resolved under American Arbitration Association procedures. Any subsequent legal action with respect to this agreement shall be filed in the Court of Common Pleas of Cumberland County. 19. REVIEW OF THIS AGREEMENT: Consultant has read this Agreement in full and, as an independent contractor, understands and accepts the terms and conditions of temporary hourly employment with PRG. 20, SIGNATURES: IN WITNESS WHEREOF, PRG and Consultant have executed this Agreement as of the date set forth above. By: #/J!~~~ ~ Professional ~source Group, Inc. BY~" l:ll ~/.1L- cWsultant () . So'c,Sec. # IS- ~~- C-- 70Lf~ Date :;- / J 4 I ;}oc')~ Page 2 of2 n 70 --0 "€A: ~ -(' 0> C'\- (~ ;> '--; o (y\ .. .~ ~ SJ\ it (:' ~ 0\-' ~~O~ ~C Wc:J _.- ~ ( ......., C:":) c:,') ..l.- c..... r';'J (-j I -J o .on ~f:p ~~;f?3 ~ ".... I ~.~ {:~~1 ..0 c")n' ~"l ~~ ~ _t~ en 1"" m IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP, INC., Docket No. 04-6107 Plaintiff CIVIL ACTION LAW v. E&E IT CONSULTING SERVICES, INC. and JOHN L. BATZER, JR., Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS AND NOW come Defendants, by and through their counsel, Stevens & Lee, and make the following Preliminary Objections to Plaintiff's Complaint, stating in support thereof as follows: I. DEFENDANT BATZER'S PRELIMINARY OBJECTION PURSUANT TO Pa. R.Civ.P. l028(a)(6), RAISING THE EXISTENCE OF AN ALTERNATIVE DISPUTE RESOLUTION AGREEMENT 1. The Plaintiff's Complaint is grounded upon a certain "hourly employee agreement" which is attached to Plaintiff's Complaint and made a part thereof as Exhibit "A" (the "Agreement"). 2. Paragraph 18 ofthe Agreement states as follows: DISPUTES. It is agreed that disputes will be resolved under American Arbitration Association procedures. Any subsequent legal action with respect to this Agreement shall be filed in the Court of Common Pleas of Cumberland County. 3. Other than incorporating the Agreement in its entirety, Plaintiff's Complaint does not even acknowledge the existence of this arbitration provision. 4. The Complaint does not plead compliance with the contractual requirement that any dispute be submitted to and resolved by the American Arbitration Association. 1 SLl 501751vllOOOOO,OOO 5. Plaintiffs action in filing this Complaint without complying with the arbitration provision actually constitutes a breach of the very contract Plaintiff seeks to enforce through this action. WHEREFORE, Defendant John L. Batzer, Jr. respectfully requests that this Court dismiss Plaintiff s Complaint as to him, and direct Plaintiff to comply with the terms of the Agreement by proceeding (if at all) before the American Arbitration Association. II. PRELIMINARY OBJECTION OF BOTH DEFENDANTS PURSUANT TO Pa. R.Civ.P.1028(a)(4) RAISING A FAILURE TO STATE A CLAIM. (WITH REGARD TO DEFENDANT BATZER, THIS OBJECTION IS PRECAUTIONARY ONLY AND BASED UPON RULE 1028(b). DEFENDANT BATZER DOES NOT WAIVE HIS R.ULE 1028(a)(6) OBJECTION HEREBY.) 6. Plaintiffs Complaint focuses primarily upon paragraph 12 of the Agreement, which states as follows: COVENANT NOT TO COMPETE. During the term of this Agreement and for a period of 12 months following this Agreement, consultant agrees not to solicit or accept any employment or work from any organization or person who was introduced to consultant through PRG. 7. Although Defendant contends that this covenant is unenforceable and contrary to law, even Plaintiffs Complaint, taken as true, establishes that the covenant has not been violated by Defendant Batzer. 8. The Complaint does not allege that Plaintiff introduced Defendant Batzer to Defendant E&E IT Consultants, Inc. ("E&E"), 9. The Complaint instead, affirmatively alleges that Defendant Batzer has accepted employment "from" E&E. 10. The Complaint does not allege and cannot allege that Defendant Batzer has solicited or accepted employment "from" DDC, New Cumberland. 2 SLl 501751vl/OOOOO,OOO 11. As a result, the actions of Defendants, as pleaded in Plaintiffs Complaint, do not violate the language ofthe covenant, assuming (without conceding) that the same is enforceable. 12. Additionally, the allegations of Plaintiffs Complaint, taken as true, do not establish either causation or damage to Plaintiff as a result of the actions allegedly taken by the Defendants. 13. The Complaint affirmatively recites that Defendant Batzer did not cease his employment until the contract had been awarded to a firm other than Plaintiff: "Batzer resigned after the bid process at DDC was completed and the bid was awarded." Complaint at ~ 12. 14. The Complaint offers no explanation for how Defendant Batzer's after-the-fact departure from PRG interfered with PRG's ability to bid on this contract. 15. Although Plaintiff apparently relies upon ~ 6( d) of the Agreement in claiming an entitlement to three weeks notice of Defendant Batzer's proposed termination, Batzer's employment was, instead, terminated pursuant to ~ 6(b). (Tennination once client no longer needs or desires services of consultant.) 16. Once the defense department awarded this contract to a contractor other than PRG, the defense department obviously no longer needed or desired Batzer's services to be provided through PRG. 17. The Complaint does not recite that Plaintiffhad or has any alternative work assignment available for Batzer. 18. To the contrary, the Agreement attached by Plaintiff to its Complaint specifically recites that Batzer will be assigned to DDC New Cumberland. 19. Therefore, had Batzer not resigned following the defense department's award of the contract to another party, Plaintiff would apparently have been responsible for paying 3 SLl 501751vi/OOOOO,OOO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PROFESSIONAL RESOURCE GROUP, INe., Docket No. 04-6107 Plaintiff CIVIL ACTION LA W v. E&E IT CONSULTING SERVICES, INe. and JOHN L. BATZER, JR., Defendants CERTIFICATE OF SERVICE I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I caused a true and correct copy of the foregoing Preliminary Objections of Defendants to be served upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Craig A. Deihl, Esquire 3464 Trindle Road Camp Hill, Pennsylvania 17011-4436 ~ Mark D. Bradshaw Date: December 28, 2004 SLl 501751vIlOOOOO,Ooo , _.:'~ "..... ~ f -- ..-. \ -:;p ;~' C"l' "!" _r' ~~:i "r~: ,~, ~~ ("', .- . l~: ;~.. =2 (") c= -';'-'" .. , r-..) = c::> c.n <- ;r.". :z I W ~ -l -~ nl ::!J r- -Qrn ij? :-I() (,r: :.r~ .:':~(~ cstr1 :. -I ~ --< ;,r-" ~ \D U'l W IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP, INC., Plaintiff NO. 04-6107 vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW RESPONSE OF PLAINTIFF, PROFESSIONAL RESOURCE GROUP, INC" TO PRELIMINARY OBJECTIONS OF E & E IT CONSULTANTS. INC. Plaintiff, Professional Resource Group, Inc. ("PRG"), by and through counsel, hereby responds to the preliminary objections of Defendant, E & E IT Consultants, Inc, ("E & E") as follows: II, PRELIMINARY OBJECTION OF BOTH DEFENDANTS PURSUANT TO Pa, R.Civ,P, I028(a)(4) RAISING A FAILURE TO STATE A CLAIM, 6, Admitted. 7, Denied, Plaintiff alleges that Defendant did violate the Covt:nant not to compete, 8, Denied, John L. Batzer, Jr. ("Batzer") was introduced to the specialized position at DDC, New Cumberland, which is where he now works as a consultant when he was formerly employed with Plaintiff, The covenant not to compete sets fonh he cannot accept work from any organization who was introduced to consultant through PRG, -1- 9, Admitted in Part, It is admitted that Batzer is employed with E & E, however, the work is with DOC, New Cumberland and the covenant to prot,ect Plaintiff has been violated by his acceptance of this assignment. 10, Admitted, However, the Complaint alleges that Batzer has accepted work from DOC, New Cumberland and that he was the only person with the experience and ability to comply with the technical requirements of the position, 11. Denied, The averment contains conclusions of law, 12, Denied, Batzer and E & E's intentional, flagrant disregard to the non compete agreement caused damage to PRG because E & E submitted a bid on the project which undercut PRG' s bid knowing that Batzer was going to be the consultant on the project. 13, Admitted, Batzer resigned when E & E was awarded the position so he could immediately continue in his existing position, 14, Denied, It is obvious that Batzer and E & E colluded to undercut the bid ofPRG since both PRG and E & E submitted bids with Batzer as the individual to fulfill the contract. 15, Denied, The averment contains a conclusion oflaw, 16, Denied, The averment contains a conclusion oflaw, 17, Denied, The Complaint sets forth that Batzer had orally informed PRG that he would continue to work with PRG, (See Averment 13,) 18, Denied, Batzer had orally informed PRG he was willing to continue with PRG, creating a belief that PRG would successfully secure the bid, -2- 19, Denied, PRG's bid to the government included Batzer as the designated consultant. E & E and Batzer breached the non compete language when they undercut the bid knowing Batzer intended to work for E & E, WHEREFORE, Plaintiff respectfully requests the dismissal of E & E's Preliminary Objection, III. PRELIMINARY OBJECTION OF DEFENDANT E & E IT CONSULTING SERVICES, INC, PURSUANT TO Pa,R.Civ.P. I028(A)(4) RAISING A FAILURE TO STATE A CLAIM, 20, Denied, The averment contains a conclusion of law, 21. Denied, The Complaint clearly sets forth that E & E's hiring of Batzer when there was non compete language in place and using Batzer to undercut PRG' s bid was tortious interference. 22, Denied, PRG had no reason to believe it would not be awarded the new contract as long as Batzer was the consultant for the project. WHEREFORE, Plaintiff respectfully requests the dismissal of E & E's Preliminary Objection, -3- Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Dated: January 15,2005 By: Q~,~"d), fLd c;;;;;D. Diehl, EsqUIre Attorney 10 No, 5280 I 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel fur Plaintiff -4- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL VANIA PROFESSIONAL RESOURCE GROUP, INC., Plaintiff NO. 04-6107 vs. E & E IT CONSULTING SERVICES, INC.. and JOHN L. BATZER. JR.. Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE, I C' #-. AND NOW, this 1 day of January, 2005, the undersigned hereby certifies that a true and correct copy of the foregoing RESPONSE OF PLAINTIFF, PROFESSIONAL RESOURCE GROUP, INC., TO PRELIMINARY OBJECTIONS OF E & E IT CONSULTANTS, INC. was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Mark D. Bradshaw, Esquire STEVENS & LEE P.O. Box 11670 Harrisburg, PA 17108-1670 LAW OFFICES OF CRAIG A. DIEHL By:. j{yjZ- Helen E. Rasmussen, Legal Assistant 3464 Trindle Road Camp HilI, PA 17011-4436 (717) 763-7613 -~~ (,-- .-.') (.,- SHERIFF'S RETURN - REGULAR CASE NO: 2004-06107 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PROFESSIONAL RESOURCE GROUP IN VS E&E IT CONSULTING SERVICE ETAL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon E&E IT CONSULTING SERVICES INC the DEFENDANT , at 0945:00 HOURS, on the 8th day of December, 2004 at 3901 HARTZDALE DRIVE SUITE 110 CAMP HILL, PA 17011 by handing to CHRIS NOTARFRANCESCO, ACCOUNT MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 10.36 .00 10.00 .00 38.36 './ ...//' ~a~.......,,-~~....... ~.::~. .-- r ~~ ">"'."'';~'''',,- ,-;1" ..-:-,,;'-'~4 R. Thomas Kline 12/22/2004 CRAIG DIEHL Sworn and Subscribed to before By: t- -=- me this /0 - day of (' 1UI-U.J< j c2 (.'0 r' A. D . I ....~ ( ~. {2 >rtJ&4.J L rr:zr . ~ rothonotary I SHERIFF'S RETURN - REGULAR CASE NO: 2004-06107 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PROFESSIONAL RESOURCE GROUP IN VS E&E IT CONSULTING SERVICE ETAL VALERIE WEARY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BATZER JOHN L JR the DEFENDANT , at 1705:00 HOURS, on the 21st day of December, 2004 at 1819 RIDGEVIEW DRIVE CARLISLE, PA 17013 by handing to JOHN L BATZER JR a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 3.70 .00 10.00 .00 19.70 _~,- r?"yJ.,:17' r MC~-,; R. Thomas Kline .'-"/~"-'~ __;.~I/ ,../,.'/. ,_,,;'l'--~~~i:~~~':~:;:' ,_~"~~':.A~ " " 12/22/2004 CRAIG DIEHL Sworn and Subscribed to before By: '~t . I A-<'" ' 'J. _ Mu y Sheri~f'2 me this /0 ~ day of C)-7)7 cJPl! 5' . A.D. L~, fJ. ~"-> ~ P othonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP, INC., Plaintiff NO. 04-6107 vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW PRAECIPE FOR DISCONTINUANCE AS TO DEFENDANT. JOHN BATZER To The Prothonotary: Kindly discontinue the above-referenced proceeding as to Defendant, John 1. Batzer, Jr., only. Attached hereto is written consent from all parties pursuant to Pa. Rule of Civil Procedure, Rule 229(b)(I). LAW OFFICES OF CRAIG A. DIEHL Dated: February L, 2005 By: (J~D rs~L ~ehl, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP, INC., Plaintiff NO. 04-6107 vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW The undersigned parties, pursuant to Pa. Rule of Civil Procedure, Rule 229(b)( I), hereby provide written consent to a discontinuance of the proceeding against John 1. Batzer, Jr. only. LAW OFFICES OF CRAIG A. DIEHL Dated: h 'r/,w~ 1l 'J.rtJS' I By: ~(1, l:5;.t.t ~ehl, Esquire Counsel for Plaintiff Dated: 5/zy ~~ STEVEN~ & LEE ~ ~~-6 ~ By: Mark D. Bradshaw, Esquire Counsel for Defendant, Batzer Dated: ~(Z'(k-- STEVENS,& LEE 'A ~~0'~ By: Mark D. Bradshaw, Esquire Counsel for Defendant, E&E Consultants, Inc. @ (\ f ~ l/\ ~ "' "\ ~ t' () .:e\~ >b '\ ~ "''' = ,-~ <J" '- S o ..,., ..... ::L-n pl;::::;: -:;;:::: ':Jt! (-~~ (J ~ -~", :.');JJ ",) <:Jr'1 _.-:'j ~;.. .0 -< N .J;.-' :::~': .c~.J U"1 o - PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and snbmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ------------------------------------------------------------------------------.------------------------------------- CAPTION OF CASE (entire caption must be stated in jidl) PROFESSIONAL RESOURCE GROUP, INC., (Plaintiff) vs. E&E IT CONSULTING SERVICES, INC. , (Defendant) No. 6107 2004 Term I. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): PRELIMINARY OBJECTIONS OF DEFENDANT 2. Identify cOWlsel who will argue cases: (a) for plaintiff: CRAIG A. DIEHL. ESQUIRE (Name and Address) 34641RINDLE RD.. CAMP HIll, PA 17011-4436 (b) for defendant: MARK D. BRADSHAW. ESOUIRE 4750 LINDLE RD. , (Name and Address) P.O. BOX 11670. HARRISBURG. PA 17108-1670 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: AUGUST 24, 2005 . ~A~ou(Ll Signature Date: " /2q I Ob , , CRAIG A. DIEHL, ESQUIRE Print your name PROFESSIONAL RESOURCE GROUP, INC., PlAINTIFF Attorney for 'Ct ~ '-" S7;:: ...- ~ OJ o "n ~::;:! -D. ff\ c:, -o\~ --IJ'-;-- C~~'; <-rn ''', , .~-::' "'" ::;r.. - " ~<o ""- v - ]7" #8 PROFESSIONAL RESOURCE GROUP, INC. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. E & E IT CONSUL TING SERVICES, INC., and JOHN 1. BATZER, JR. NO. 2004 - 6107 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT E & E CONSULTING SERVICES. INC. BEFORE BAYLEY. GUIDO. JJ. ORDER OF COURT AND NOW, this 7TH day of SEPTEMBER, 2005, after review of the parties' briefs and having heard argument thereon, the Preliminary Objections of Defendant E & E Consulting Services, Inc. are DISMISSED, Edward E. Guido, 1. Aaig A. Diehl, Esquire 3464 Trindle Road Camp Hill,Pa. 17011-4436 ~ark D. Bradshaw, Esquire P,O. Box 1I670 Harrisburg, Pa. 17108-1670 .~ :sld 1,-- !-1 . "ill ..".... .c. (.::., ..... ~. ~ --~ q,,- " suuz IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP, INC., Docket No. 04-6107 Plaintiff CIVIL ACTION LAW v. E&E IT CONSULTING SERVICES, INC. and JOHN 1. BATZER, JR., Defendants DEFENDANT E&E IT CONSULTING SERVICES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT I. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted upon information and belief. 5. Admitted upon information and belief, with the clarification that DDC was, in 2002, a "client" of Plaintiffs. 6. Denied. The Agreement is in writing and speaks for itself. No responsive pleading is therefore required. 7. Denied. The Agreement is in writing and speaks for itself. No responsive pleading is therefore required. 8. Denied. It is specifically denied that DDC was "PRG's client" at the time Mr. Batzer resigned from PRG in 2004. Indeed, the allegation set forth in Paragraph 8 is specifically contradicted by Paragraph 12 of Plaintiffs own complaint, which states "Batzer resigned after the bid process at DDC was completed and the bid was awarded". The bid was "awarded" to Defendant, and, at that time, DDC was no longer "PRG's client". SLl 574879vl/064598.QOOOI 9. Denied. The averments of Paragraph 9 constitute legal conclusions requiring no responsive pleading. COUNT I Breech of Contract 10.-19. The averments of Paragraphs 10 through 19 are directed at a party other than Defendant E&E IT Consulting Services, Inc., which makes no response thereto. By way of further answer, this action was discontinued by Plaintiff with respect to Defendant Batzer. COUNT II Tortious Interference With Contractual Relations 20. The responsive averments of Paragraphs 1 through 9 are incorporated as those set forth in full herein. 21. Denied. The allegations set forth in Paragraph 21 constitute legal conclusions requiring no responsive pleading. 22. Denied. The use of noncompete agreements is not "standard procedure in the industry", at least insofar as Defendant E&E is concerned. E&E has not, and does not currently, utilize so-called "noncompete" agreements. 23. Denied. Paragraph 23 is denied both as a legal conclusion requiring no responsive pleading and as a matter of fact. To the contrary, as set forth in Plaintiff's own complaint (Paragraph 12), Batzer resigned only after Plaintiff had lost the contract with DDC. As a result, it was impossible for E&E to "interfere" with an agreement that contemplated Batzer providing services to DDC through Plaintiff. 24. Denied. The averments of Paragraph 24 constitute legal conclusions requiring no responsive pleading. 2 SLl 574879vl/064598.00001 25. Denied. The averments of Paragraph 25 constitute legal conclusions requiring no responsive pleading. 26. Denied. The averments of Paragraph 26 constitute legal conclusions requiring no responsive pleading. Moreover, there is absolutely no basis identified for this damage amount. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and such other and further relief as the Court deems just. COUNT III Tortious Interfereuce with Prospective Contractual Relationship 27. The averments of Paragraphs 1 through 9 and 20 through 26 are incorporated herein by reference. 28. The averments of Paragraph 28 are denied both as a legal conclusion requiring no responsive pleading as is a matter of fact. To the contrary, PRG did not have a prospective contractual relationship with DDC as of June 30, 2004, inasmuch as PlaintiffPRG had already lost the contract through competitive bidding. 29. Denied. The averments of Paragraph 29 are denied both as legal conclusions requiring no responsive pleading and as matters of fact. To the contrary, E&E hired Batzer solely for the purpose of advancing its own interests, and such competition is privileged as a matter ofIaw. 30. Denied. The averments of Paragraph 30 are denied both as legal conclusions requiring no responsive pleading and as a matter of fact. To the contrary, inasmuch as Plaintiff PRG had already lost the DDC contract, the noncompete language was inapplicable, inasmuch as PlaintiffPRG has no interest in the DDC contract capable of protection. 3 SLl 574879vl/064598.00001 31. Denied. The averments of Paragraph 31 are denied both as constituting legal conclusions requiring no responsive pleading and as matters of fact. To the contrary, PRG had no "likelihood or probability" of receiving option years on a contract which it was not awarded. 32. Denied. The averments of Paragraph 32 constitute legal conclusions requiring no responsive pleading. 33. Denied. The averments of Paragraph 33 constitute legal conclusions requiring no responsive pleading. Moreover, there is absolutely no basis identified for this damage amount. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff, together with costs and such other and further relief as the Court deems just. Dated: Respectfully submitted, ,2005 STEVE~E~ ~ By: ~ C Mark D. Bradshaw " Attorney LD. No. 61975 P.O. Box 11670 Harrisburg, P A 17108-1670 (717) 561-5242 Attorneys for Defendant, E&E IT Consulting Services, Inc. 4 SLl 574879v1l064598.00001 SEP-27-200, 14:27 FROM: TD:5615207 P.1/1 VERTFTCATION I, Tracy D. Etter, an officer of E&E IT Consulting Services, Inc., hereby state that the I acts set forth in the foregoing Answer are true and correct to the best of my knowledge, info :mati on and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. 94904, relating to u ]Sworn falsification to authorities. Datl:d: September 27, 2005 ~ J, ~* SLI 575617vl1064598,OOOOI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PROFESSIONAL RESOURCE GROUP, INC., Docket No. 04-6107 Plaintiff CIVIL ACTION LAW v. E&E IT CONSULTING SERVICES, INC. and JOHN L. BATZER, JR., Defendants CERTIFICATE OF SERVICE I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I caused a true and correct copy of the foregoing Defendant E&E IT Consulting Services, Inc.' s Answer to Plaintiffs Complaint to be served upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, Pennsylvania 17011-4436 M"kD~ Date: ~, 2005 SLl 574879vl/064598.QOOQl (') c~: r-> C;~) c.:::l Cf' C/O \->;-1 "'0 N 0:) ~ ...., :C...,., n1-= -Ohl ",)CJ (?C":; ">:::'tJ : ., -~) .-<~n (,:)' ..-i '.- 'D :..-..;. -n ~) .....', (;) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP,INC., Plaintiff NO. 04-6107 vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned proceeding settled and discontinued with prejudice. LA W OFFICES OF CRAIG A. DIEHL Dated: January 16,2006 By: ~O.r:;;Ll Craig Diehl, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiff ... . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROFESSIONAL RESOURCE GROUP, INC., Plaintiff NO. 04-6107 vs. E & E IT CONSULTING SERVICES, INC., and JOHN L. BATZER, JR., Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this I fk iJ day of January, 2006, the undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE TO DISCONTINUE was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Mark D. Bradshaw, Esquire STEVENS & LEE P.O. Box 11670 Harrisburg, PA 17108-1670 LA W OFFICES OF CRAIG A. DIEHL / ) By: J4::~ - Helen E. Rasmussen, Legal Assistant 3464 Trindle Road Camp Hill, PAl 70 11-4436 (717) 763-7613 .. c-- ~ . .- -- c-.: (;? C") ,,~ ~ /-----