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HomeMy WebLinkAbout14-0551 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JESSE MCKEE, No. Plaintiff CIVIL ACTION - LAW c4 -�.-- GREGORY ANSPACH and TRAVIS wt` MYERS, t /d/b /a GETTING SPIFFY,' `` r.3, C a Pennsylvania general partnership, :- CD Defendants 4.. PETITION FOR DECLARATORY RELIEF AND NOW, this 2-WAay of January, 2014, comes Petitioner, Jesse McKee, by and through his attorney, Sean M. Shultz, Esquire, and files the following Petition, and in support thereof aver as follows: 1. Petitioner is Plaintiff, Jesse McKee ( "McKee "), whose address is 99 Ridge Road, Newville, Pennsylvania 17241. 2. Respondents are Defendants, Gregory Anspach and Travis Myers, trading and doing business as Getting Spiffy, a Pennsylvania General Partnership, with a principal place of business and address of 4902 Carlisle Pike, Box 267, Mechanicsburg, Law offices of Pennsylvania 17050. Saidis Sullivan 3. The general partners of Getting Spiffy are Gregory Anspach and Travis Myers. & Rogers 4. Getting Spiffy provides services for vehicle paint touch -up, paint chip and paint 26 West High Street Carlisle, PA 17013 repairs. 5. McKee was employed as an at -will employee by Getting Spiffy in approximately October or November of 2011, as a painter. 4 03.75 0� A 0 '? 0(fo� 2 3`'a96� 6. On February 23, 2012, Getting Spiffy presented McKee with a Covenant Not To Compete and Confidentiality (Non- Disclosure) Agreement ( "the Agreement "). A true and correct copy of the Agreement is attached hereto and made a part hereof as Exhibit 7. McKee was not afforded an opportunity to seek advice of counsel in regard to the Agreement. 8. McKee was already employed by Getting Spiffy at the time the Agreement was executed. 9. McKee was provided only $10.00 in consideration for the execution of the Agreement. l0. McKee was effectively terminated by Getting Spiffy on December 14, 2012. 11. McKee had approximately six years of experience as a vehicle painter prior to being employed by Getting Spiffy. 12. McKee was provided no new or additional skills or training while employed by Getting Spiffy. 13. While employed by Getting Spiffy, McKee performed nearly all of the paint jobs of Getting Spiffy. 14. To the recollection of McKee, Getting Spiffy had only four paint jobs outside of Law Offices of Cumberland County during his tenure: One in Mifflin County for Lewistown Lexus, one Saidis Sullivan for Faulkner Honda and for Cioccia Honda in Dauphin County, and one job in Franklin & Rogers County. 26 West High Street Carlisle, PA 17013 15. Getting Spiffy maintains a presence only within Cumberland County. 16. During McKee's employment, Getting Spiffy did not market itself outside of Cumberland County. 17. It is believed, therefore averred, that Getting Spiffy has few, if any, clients outside of Cumberland County. 18. It is further believed and averred that Getting- Spiffy has a client base predominantly from the area of Mechanicsburg, Cumberland County, Pennsylvania. WHEREFORE, Petitioner respectfully requests that This Honorable Court provide Petitioner declaratory relief that voids the Agreement for failure to provide adequate consideration. In the alternative, Petitioner respectfully requests that This Honorable Court limit the geographic and temporal scope of the Agreement. Respectfully submitted, SAI IS, SULLIVAN & ROGERS can M. Shultz, Esqu Attorney ID No. 90946 26 W. High Street Carlisle, Pennsylvania 17013 (717) 243 -6222 Attorney for Petitioner Law Offices of Saidis Sullivan & Rogers 26 West High Street Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA,. JESSE MCKEE, No. for 2014 .Plaintiff -CIVIL ACTION - LAW V. GETTING SPIFFY, a Pennsylvania general partnership, Defendant VIERWICATIO N I VERIFY that the statements set forth in the foregoing Petition are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to a unworn falsification to authorities. i Date: January 2014 I � Jes cKee i i i i "a .. Exhi bit, Law Offices of Saidis Sullivan & Rogers 26 West High Street Carlisle, PA 17013 COVENANT NOT TO COMPETE AND CONFIDENTIALITY (NON-DISCLOSURE) AGREEMENT THIS AGREEMENT is made this � of February, 2012, by and between GREGORY H. ANSPACH, an adult individual, and TRAVIS MYERS, an adult individual, trading and doing business as GETTING SPIFFY, a Pennsylvania General Partnership, all with a principal place of business and address of 4902 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, (hereinafter collectively referred to as "GETTIN SPIFFY"), and JESSE MCKEE, an adult individual with an address of 99 Ridge Road, Newville, Pennsylvania, (hereinafter referred to as "MCKEE"). In consideration of the mutual covenants herein, and intending to be legally . bound hereby, the parties affirm and agree as follows: WHEREAS, GETTIN SPIFFY and MCKEE are, simultaneously with execution of this Agreement, entering into an employment arrangement; and WHEREAS, as a material inducement to MCKEE to enter into the employment arrangement, MCKEE has agreed to enter into this Covenant Not To Compete, Confidentiality (Non - Disclosure) Agreement and Non - Solicitation Agreement to protect GETTIN SPIFFY by restricting MCKEE from engaging in any unfair competition against GETTIN SPIFFY in the future; and WHEREAS, MCKEE hereby acknowledges and recognizes that MCKEE, during the course of his employment relationship with GETTIN SPIFFY will obtain confidential information and proprietary information, including but not limited to names of customers, phone numbers, customer information, cost /quote /bid information, billing records, and other pertinent business, public or private, confidential or proprietary information which is necessary for GETTIN SPIFFY to use and rely on during and after any employment relationship with MCKEE; and NOW THEREFORE, for good and valuable consideration, the adequacy and sufficiency is hereby acknowledged by both parties hereto, GETTIN SPIFFY and MCKEE agree as follows: COVENANT NOT TO COMPETE - VEHICLE PAINT TOUCH -UP, PAINT CHIP AND PAINT REPAIRS 1. In consideration of the terms and conditions of his employment by GETTIN SPIFFY and the sum of TEN DOLLARS ($10.00), receipt of which is hereby acknowledged and other and valuable consideration for MCKEE'S agreement not to compete with GETTIN SPIFFY while GETTIN SPIFFY is in the business of providing paint auto touch -up, paint chip and general limited painting repair to damaged motor vehicles in various south Central Pennsylvania counties, including Adams, Franklin, Dauphin., York, Perry, Juniata, Snyder, Huntingdon, Northumberland, Schuylkill, Lebanon, Centre, Lancaster and Cumberland, MCKEE and having the advice of an attorney or the opportunity to seek the advice thereof, hereby agrees, in any combination, that MCKEE will not for a period of five (5) years from the date of termination of his employment with GETTIN SPIFFY, for any reason, cause or without cause, individually or in conjunction with any other person or entity, own, manage, operate, control, be employed or retained by, participate in or be connected in any manner with a business which involves vehicle paint touch -up, paint chip and general limited painting repair to damaged motor vehicle and similar types of mechanical equipment associated with paint repairs in various south Central Pennsylvania counties, including Adams, Franklin, Dauphin, York, Perry, Juniata, Snyder, Huntingdon, Northumberland, Schuylkill, Lebanon, Centre, Lancaster and Cumberland. Notwithstanding the foregoing limitations (which shall be strictly constructed), for purposes of providing MCKEE with an opportunity to gain employment in the event of termination for any reason, GETTIN SPIFFY and MCKEE.agree that MCKEE may obtain employment or participate as an employee with a business performing general automotive repair or restorative auto body repair work or reconstruction. In no event shall MCKEE engage in any type of painting repair or painting reconstruction as set forth in the preceding paragraph. NON- SOLICITATION - VEHICLE PAINT TOUCH -UP, PAINT CHIP AND PAINT-REPAIRS 2. MCKEE, either as an employee, consultant, principal, partner, stockholder, corporate officer, director or any other individual representative capacity, shall not, for a period of five (5) years from the date of termination of his employment for any reason, cause or without cause, with GETTIN SPIFFY: i. Directly or indirectly solicit or :attempt to solicit any business or trade from the GETTIN SPIFFY and GETTIN SPIFFY'S actual or prospective customers or clients; or ii. Directly or indirectly employ or attempt to employ any employee of GETTIN SPIFFY; or iii. Directly or indirectly divert -or attempt to divert business away from GETTIN SPIFFY; or iv. Directly or indirectly, encourage, direct or advise any independent contractor or consultant to end a relationship with GETTIN SPIFFY. NON — DISCLOSURE (CONFIDENTIALITY) -PROVISION — VEHICLE PAINT TOUCH —UP, PAINT CHIP AND PAINT REPAIRS 3. MCKEE hereby acknowledges and agrees that he will become privy to and in possession of certain confidential, non - public or proprietary information: concerning the business and operations 'of GETTIN SPIFFY,. including, but not limited to, mailing lists, pricing,.trade secrets, compilations of information, records, advertising methods, production methods, techniques., activities and account information. As a condition of.furr_ishing'such information and execution of the terms of this Aareement,'MCKEE and GETTIN SPIFFY agree that MCKEE shall treat confidentially such information furnished by GETTIN SPIFFY to MCKEE for a period of five (5) years from the da:te.of termination of his employment for any reason, cause or.without cause, with GETTIN SPIFFY. MCKEE and GETTIN'SFtIFFY agree that all information provided by GETTIN to MCKEE'and the terms of this Agreement shall be kept confidential by MCKEE, and MCKEE agrees not .to disclose such - i.nformlation to anyone without first obtaining the -writ.teh. consent of GETTIN SPIFFY. ENFORCEMENT PROVISION — VEXICLE PAINT TOUCH— UP, PAINT CHIP AND PAINT REPAIRS 4. MCKEE acknowledges that. the.agreements, representations, conditions, te='B acknowledgements set forth above and throughout this Agreement are reasonable and necessary in view of the nature of GETTIN SPIFFY'S businesses and in order to protect the legitimate business interests of GETTIN SPIFFY. MCKEL further acknowledge that any violation by MCKEE of the representations and agreements contained herein, or any of _them, would result in irreparable injury to GETTIN SPIFFY which is not adequately compensated by money damages. Therefore,.MCKEE agrees that, in the event of a breach or threatened breach by MCKEE of any provisions of this Agreement, GETTIN SPIFFY shall be entitled to preliminary and permanent injunctive relief J restraining MCKEE from any violation of the agreements contained herein. MCKEE acknowledges- that any violation by MCKEE, after execution of this Agreement, will result in irreparable injury to GETTIN SPIFFY. MCKEE also acknowledges that in the event of any such violation, GETTIN SPIFFY shall be entitled to seek preliminary and permanent injunctive relief without the necessity of proving actual damages and to seek an equitable accounting of all earnings, profits and other benefits arising from any such violation. GETTIN S right to seek equitable relief shall be cumulative and in addition to any other rights or remedies (at law or in equity) to which GETTIN SPIFFY may otherwise be entitled, including, but not limited to, suit for money damages and reasonable attorney fees. 5. MCKEE further agrees that if GETTIN SPIFFY institutes legal action to enforce any provision of this Agreement, MCKEE will pay for GETTIN SPIFFY'S attorneys' fees and litigation costs incurred in enforcing this Agreement, if GETTIN SPIFFY obtains relief as a result of such legal action. .6. In the event that any court of competent jurisdiction shall determine that any of the restrictive agreements contained in this Agreement are inequitably broad as to any provision_, it is the intention of the parties that the court adjust the obligations of MCKEE under the restrictive agreements, rather than eliminating such obligations entirely. In the event the court shall equitably adjust the restrictive agreements, the remainder of the restrictive agreements and of this Agreement shall remain in full force and effect. REPRESENTATIONS OF MCKEE 7. MCKEE recognizes and acknowledges that this is a legal and binding document intended to be incorporated within and construed with his employment with GETTING SPIFFY. MCKEE acknowledges that this is a legally binding document which may restrict MCKEE'S pursuit of certain actions of a competitive nature in the business conducted by GETTIN SPIFFY. Further, MCKEE acknowledges that he has reviewed this document in advance of signing, suggested certain modifications which were made and that MCKEE has had the time and opportunity to review this Agreement with legal counsel of his own choosing explaining the meaning of this Agreement, or has knowingly and voluntarily waived the opportunity to do so. 4 MISCELLANEOUS PROVISIONS 8. THIS Agreement contains the final and entire understanding between MCKEE and GETTIN SPIFFY with respect to the subject matter contained herein. This Agreement may be altered or amended only by written agreement signed by both MCKEE and GETTIN SPIFFY. 9. If any covenant or provision contained in this Agreement is found by any Court having competent jurisdiction to be unreasonable in duration or the character of such restriction, such covenant or.provision shall not be rendered unenforceable thereby, but rather the duration or character of restriction of such covenant or provision shall be reduced or modified with retroactive effect to render such covenant or provision reasonable, and therefore such covenant or provision shall be enforced as modified. If any such court having competent jurisdiction does not revise the covenant or provision in question at the time, the parties hereto shall mutually agree to a revision having an effect as close as permitted by law to the provision declared unenforceable. Should, however, a court of competent jurisdiction deem any covenant or provision contained herein unenforceable, only said covenant or provision will be considered unenforceable, deemed severed from this Agreement, with the remaining covenants and provisions surviving and enforceable.' 10. This Agreement shall be interpreted under the laws of the Commonwealth of Pennsylvania and construed as is prepared for the benefit of both parties. 11. Nothing'herein_ shall be construed to prohibit GETTIN SPIFFY from assigning the terms of this Agreement to a successor owner or affiliated company, and MCKEE agrees to the assignment of this Agreement under the same terms and conditions. 12. Neither the failure by GETTIN SPIFFY to insist upon strict compliance with any.provision of this Agreement nor any decision by GETTIN SPIFFY not to assert any right it may have to enforce any'such provision shall be deemed a waiver of any of the provisions, rights or remedies contained in this Agreement. o : IN WITNESS WHEREOF, GETTIN SPIFFY and MCKEE, intending to be legally -bound hereby, have caused this Agreement to be signed as of the day and year first written above. WITN SS: Groori VH.VAApadV, General Partner, GETTIN SPIFFY i T vis Myers, G - ral Partner GETTING SPIFF WI ESS: iqdse McKee, Individually (Employee) COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND . On this, the -2--3' 4f day . of. February, 2012, before-me, a Notary Public, personally appeared GREGORY H.- ANSPACH, who acknowledged himself to be a':General Partner of GETTING SPIFFY, a Pennsylvania General Partnership, and that he as such General Partner, being authorized to do:.so, executed the same-for the purposes therein contained by signing his name as a General Partner. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public I� My Commission Expii es: NOTAPI& SEAL seoCY M. W MEt.Y, Nwiry Puc f4ech wksburg B o, a, mbobW CO. My commlsslon Bom w 19, 2014 6 -- COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the _2 2 d >_.:day.. of February, 2012, before me, a Notary Public, personally`.'= aVbared TRAVIS MYERS, who acknowledged himself to be. :a.'Gerieral Partner of GETTING SPIFFY, a Pennsylvania General Partn;�rshig, and that he as such General Partner, being authorized to do so, executed the same for the purposes therein contained by signing his name as a General Partner. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Not ary Public My Commission Ex s: NOTARIAL SEAL M� �C M. w+M.Y, r�rf PW* Boro,ttimbaiand Co. = - My CommWw Eow Mv.19, 2914 COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the -- day . . of February, 2012, before me, a Notary Public, personaily.appea:red JESSE MCKEE, an adult individual, known to me or sa.Liszactorily proven to be the person whose name is subscribed: to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Ex_lre° NOTARIAL SEAL . BE{]CY M. MSELY, No h6 k . MedwAc*M 80m, CumbvfM4 Ch My CaruNWon E Nov. 19, 2014 n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JESSE MCKEE, No. - for 2014 Plaintiff CIVIL ACTION - LAW V. GREGORY ANSPACH and TRAVIS MYERS, t/d/b /a GETTING SPIFFY, a Pennsylvania general partnership, Defendants CERTIFICATE OF SERVICE AND NOW, this Z g + day of January, 2014, I, Sean M. Shultz, Esquire, hereby certify that I am serving the following with a copy of the foregoing Petition by process server, addressed as follows: Getting Spiffy 4902 Carlisle Pike Box 267 Mechanicsburg, Pennsylvania 17050 Gregory Anspach 4902 Carlisle Pike Box 267 Mechanicsburg, Pennsylvania 17050 Travis Myers 4902 Carlisle Pike Box 267 Mechanicsburg, Pennsylvania 17050 Law Offices of Respectfully submitted, Saidis S S, SULLIVAN & ROGERS Sullivan & Rogers 26 West High Street Carlisle, PA 17013 an M. Shultz, Esquire Attorney ID No..90946 26 W. High Street Carlisle, Pennsylvania 17013 (717) 243 -6222 Attorney for Petitioner JESSE MCKEE, ' Plaintiff �. � ,a�il1� ' a ;:I I I. I Htt v' Count?of 4Cumbrr[anb IN THE COURT OF COMMON PLEAS GREGORY ANSPACH and TRAVIS OF THE NINTH JUDICIAL DISTRICT MYERS, t/d/b/a GETTING SPIFFY, a Pennsylvania general partnership, 2014-00551 CIVIL TERM Defendants IN RE: PETITION FOR DECLARATORY RELIEF ORDER OF COURT AND NOW, this 31st day of January 2014, upon consideration of Plaintiff's Petition for Declaratory Relief, a RULE is issued upon Defendants to show cause why the Agreement should not be voided for failure to provide adequate consideration and, in the alternative, why the geographic and temporal scope of the Agreement should not be limited by this court. PLAINTIFF shall effectuate service of this Order of Court upon Defendants and shall file proof of service. RULE RETURNABLE twenty (20) days from the date of service. Thomas A. Placey C.P.J. Distribution List: ./ Sean M. Shultz, Esq. VINVA1ASNN3d AIN11Q3 JNVi43 61.413 - regory Anspach �, 410 ,,--Travis Myers t.'I IONOH1OJd RH E ~` .0-r 114 ./Ce-14-114.17 sL,4446. 3/PV - I� IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JESSE MCKEE, • No. 2014- 00551 Plaintiff • • CIVIL ACTION - LAW v. • • GREGORY ANSPACH and TRAVIS •• MYERS, t/d/b/a GETTING SPIFFY, rico "1 :4711).7'r—rr:t ---r" -7-tu a Pennsylvania general partnership, ' - Defendants • CERTIFICATE OF SERVICE w --1 --°- AND NOW, this 12th day of February, 2014, I, Sean M. Shultz, Esquire, hereby certify that the following persons were served with a copy of the Order of Court dated January 31, 2014, in the above-referenced matter. The Order of Court was mailed on February 7, 2014, but actual service of the copies took place on February 10, 2014. The copies were mailed in the United States Mail, Certified Mail--Return Receipt Requested, Postage Prepaid, addressed as follows: Travis Myers 4902 Carlisle Pike Box 267 Mechanicsburg, Pennsylvania 17050 Gregory Anspach 4902 Carlisle Pike Law Offices of Box 267 Saidis Mechanicsburg, Pennsylvania 17050 Sullivan Defendant & Rogers Andrew C. Sheely, Esquire 26 West High 17013 Street 127 S. Market Street Carlisle,PA 17013 Mechanicsburg, Pennsylvania 17055 Attorney for Defendants A copy of the signed Domestic Return Receipts is attached hereto as Exhibit "A" and by reference incorporated herein and made a part hereof. Respectfully submitted, SAIDIS, SULLIVAN & ROGERS °POPP - 4111,iipP•• Sean M. Shultz, Esq Attorney ID No. 90946 26 W. High Street Carlisle, Pennsylvania 17013 (717) 243-6222 Attorney for Petitioner Law Offices of Saidis Sullivan & Rogers 26 West High Street Carlisle,PA 17013 SENDER:COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A.Sig :ture , ✓ • - item 4 if Restricted Delivery is desired. gent • Print your name and address on the reverse X .. D A Addresser so that we can return the card to you. B. Received by(Printed Name) C. Date of Deliver • Attach this card to the back of the mailpiece, or on the front if space permits. Dam.v~, FCC- /4 D. Is delivery address different from iie(n C.� 1. Article Addressed to: If YES,enter delivery address 4k4r 0,0kto, ‘—fraV Li& Nil tire !Li! i_4P. \'- 46i Oz. eetirt-sy f Le, \44-,,,„ ., ' b. ,{n \j `= 11) i z.-( 1- 3. S:rOice Type -� ..�... (�/ del Certified Mail ❑Express Mail i^ /1, /�n j(t--S 111 liq P fi i 7 ❑ Registered ❑ Return Receipt for Merchandis( `�J( V t ' (r3 ( ❑ Insured Mail ❑C.O.D. it 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Arti 7012 1010 0001 3108 0948 (Fra PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-154 SENDER:COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A. S' ature item 4 if Restricted Delivery is desired. / l L gent • Print your name and address on the reverse X A t/f J ❑Addressee so that we can return the card to you. Received by(Printed Name) C. Date Deliver • Attach this card to the back of the mailpiece, C d.,Li or on the front if space permits. 1`�` I D. Is delivery address different from it t J _,c• 1. Article Addressed to: If YES,enter delivery address b9(oar,`' ❑ W�\\ kel'0 rki ithiqlad-) ,,,, i.4O2 isle like : _ { Aj( �f�� 3. Service pe ��;- O /- ertified Mail ❑ Express Mail � r ❑Registered ❑Return Receipt for Merchandise tre n �� L�'r ❑ Insured Mail ❑C.O.D. /'4e es--0 4. Restricted Delivery?(Extra Fee) 02, Yes 2. Article 7012 1010 0001 3108 0962 (fransl PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-154 SENDER:COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY 1. • Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. x /h ^ Agent • Print your name and address on the reverse Addresse so that we can return the card to you. B. Received by(Printed Name) C. Date of Deliver • Attach this card to the back of the mailpiece, or on the front if space permits. B V h/5e_l�� 2,-16-q' D. Is delivery address differe t from rte d 1 es 1. Article Addressed to: If YES,enter delivery address w•�-- No r, Am/led C . She e� E �; , j 11 -n; i27 5 Müik e l' Si` , I 3. SServe�Type \P . 3Or: I14r� I ( �i Mtertified Mail ❑Express Mat-------- eI Ar' j 6/jvii/1 ) /i ❑Registered ❑Retum Receipt for Merchandi: VVV��• J (�� ❑Insured Mail ❑C.O.D. / J 4. Restricted Delivery?(Extra Fee) ❑Yes 2. 7012 1010 0001 3108 0979 PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-15 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JESSE MCKEE, • No 14-551 Plaintiff • r d • CIVIL ACTION - LAV 7' ' z' V. C1t �c GREGORY ANSPACH and TRAVIS : , MYERS, t/d/b/a GETTING SPIFFY, • rC rl a Pennsylvania general partnership, • -' -t� Defendants • AFFIDAVIT OF SERVICE I, Kevin Preston, being duly sworn according to law depose and say that I served the letter dated January 28, 2014, and the Petition for Declaratory Relief, filed on January 28, 2014, in the above-captioned matter, on Travis Myers at 6 15 C ) 15,e K, y./ pet. p. ( / , Pennsylvania, at o'clock, 1 .m. on the ovcraay of Jc,. J , 2014. —.I .00/ e''Preston / c oAlviicbl C Sworn and subscribed before me this Law Offices of day of , 2014. Saidis Sullivan & Rogers 76,i5- scEJCd 26 West High Street Carlisle,PA 17013 1 4V, s /nyt�s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JESSE MCKEE, • No. 14-551 • Plaintiff CIVIL ACTION - LAW rico . V. N r_ { J's C'3 GREGORY ANSPACH and TRAVIS r'": MYERS, t/d/b/a GETTING SPIFFY, c-.) a Pennsylvania general partnership, r T.w _`y' Defendants c. AFFIDAVIT OF SERVICE I, Kevin Preston, being duly sworn according to law depose and say that I served the letter dated January 28, 2014, and the Petition for Declaratory Relief, filed on January 28, 2014, in the above-captioned matter, on Getting Spiffy at 6 7/5 Ca/1 I S/c- 1 K. meo-I? p .C8,k,by 41,.., ) Pennsylvania, at • its o'clock, P .m. on the,t7 7 1(day of , 2014. Ke n 'reston / co Je Sworn and subscribed before me this Law Offices of day of , 2014. Saidis Sullivan & Rogers 26 West High Street Carlisle,PA 17013 D T Oi/7 Setdert t. ita v;,5 p72/et5 Andrew C. Sheely, Esquire .t gg! 127 S. Market Streets 1` F � ? P.O. Box 95 Mechanicsburg, PA 17055 g, + PA ID NO. 62469 :.J 3�18ERLAN1j (,.Ot, j - 717-697-7050 (Phone) PENNSYLVANIA 717-697-7065 (Fax) andrewc.sheely @verizon.net JESSE MCKEE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . 2014-551 vs. • GREGORY ANSPACH and TRAVIS, CIVIL ACTION - LAW MYERS, t/d/b/a GETTING SPIFFY, a Pennsylvania general: partnership, • Defendants • DEFENDANTS' ANSWER TO PETITION AND RULE TO SHOW CAUSE Defendants, Gregory Anspach and Travis Myers, t/a and d/b/a Gettin Spiffy, by and through counsel of Andrew C. Sheely, Esquire, hereby submit this Answer to the Rule and in response to the Petition for Declaratory Relief, respectfully answering as follows: 1. Admitted. 2 . Admitted with clarification. The duly registered fictitious name of the partnership operated by Defendants Gregory Anspach and Travis Myers is "Gettin Spiffy" . 3. Admitted with clarification. The duly registered name of the partnership is Gettin Spiffy. 4 . Admitted with clarification. Gettin Spiffy provides the services to dealerships and individuals throughout south central Pennsylvania. 5. Admitted in Part/Denied in Part. It is admitted that Plaintiff was an at-will employee of Gettin Spiffy. It is specifically denied that Plaintiff commenced employment in October or November of 2011 as a painter with Gettin Spiffy, and strict proof thereof demanded at hearing or trial. 6 . Denied, and strict proof thereof demanded at hearing or trial. To the contrary, a draft Covenant. Not to Compete and Confidentiality (Non-Disclosure) Agreement was submitted to Plaintiff several weeks in advance of February 23, 2012 . Plaintiff reviewed the draft document and returned the draft document to Defendants with specific changes, modifications and clarifications. A copy of the marked up draft document submitted to Defendants from Plaintiff prior to February 23, 2012 is attached hereto as Exhibit A . 7 . Denied, and strict proof demanded thereof at hearing or trial. By way of further answer, paragraph 7 of February 23, 2012 Agreement clearly states that Plaintiff reviewed the document in advance and had the opportunity to seek legal counsel of his own choosing to review and explain the Agreement. A copy of the February 23, 2012 Agreement is attached hereto as Exhibit "B" . 8. Admitted with clarification. Plaintiff commenced employment with Defendants knowing that Plaintiff was required 2 to execute the Covenant Not to Compete and Confidentiality (Non- Disclosure) Agreement as a condition of Plaintiff ' s employment. 9. Denied, and strict proof thereof demanded at hearing or trial. To the contrary, consideration for the execution included Defendants teaching Plaintiff how to use a unique multiple step paint system for use in their business, Defendants presentation of billing and accounting procedures associated with the business and Plaintiff ' s employment with the business. 10. Denied, and strict proof thereof demanded at hearing or trial. To the contrary, Plaintiff voluntarily quit his employment and rejected reasonable attempts by Defendant Gregory Anspach to reconsider Plaintiff ' s decision to quit and terminate his employment with Defendants. 11. Defendants are without sufficient information to form an opinion as to the veracity of the allegations of paragraph 11 of Plaintiff ' s petition. Accordingly, the allegations are denied, and strict proof thereof demanded at hearing or trial. 12 . Denied. To the contrary, Defendants instructed Plaintiff how to operate special paint equipment and systems used to repair damaged motor vehicles. Defendants instructed Plaintiff how to properly and efficiently use a multiple step paint repair system to repair and repaint damaged motor vehicles for various dealerships and owners of vehicle sales businesses in south central Pennsylvania. Defendants also 3 provided Plaintiff with confidential information relating to accounts of Defendants, billing systems and procedures and account information with various businesses employing Defendants ' services. 13. Admitted with clarification. Plaintiff performed the majority of paint repair and services for Gettin Spiffy after Plaintiff was trained to use the equipment and systems. 14. Denied, and strict proof demanded at hearing or trial. 15. Denied, and strict proof thereof demanded at hearing or trial. To the contrary, Defendants provided services in many south central Pennsylvania counties, including Cumberland, Dauphin, Adams, York and Franklin counties. 16 . Denied, and strict proof thereof demanded at hearing or trial. To the contrary, Defendants marketed its services and developed business relationships in many south central Pennsylvania counties, including Cumberland, Dauphin, Adams, York and Franklin counties. 17 . Admitted in Part/Denied in Part. It is admitted that Plaintiff has a strong service base and client base in Cumberland County. It is denied, and strict proof thereof demanded at hearing or trial, that Defendants have a client base predominantly from the area of Mechanicsburg. By way of further answer, customers of Defendants provide vehicles for service by Defendants from all areas in south central Pennsylvania. 4 WHEREFORE, Defendants, Gregory Anspach and Travis Myers, trading and doing business as "Gettin Spiffy" , respectfully request that this Honorable Court dismiss the Petition for Declaratory Relief and upon the Agreement in accordance with its terms and conditions. Respectfully submitted, Date: February 2k , 2014 By: Andrew C. Sheely, Esquire ,010/ Pa. ID No. 62469 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 Attorney for Defendants, Gregory Anspach and Travis Myers, t/d/b/a Getting Spiffy 5 VERIFICATION I verify that the statements made in this Defendants' Answer and New Matter are true and correct. I understand that false statements herein are made subject to penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: February 77, 2014 1.4 r gory fspach Exhibit "A" COVENANT NOT TO COMPETE AND CONFIDENTIALITY (NON-DISCLOSURE) AGREEMENT THIS AGREEMENT is made this day of December, 2011, by and between GREGORY H. ANSPACH an adult individual, and TRAVIS MYERS, an adult individual, trading and doing business as GETTING SPIFFY, a Pennsylvania General Partnership, all with a principal place of business and address of 4902 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, (hereinafter collectively referred to as "GETTIN SPIFFY") , and JESSE MCKEE, an adult individual with an address of Pennsylvania, (hereinafter referred to as "MCKEE") . In consideration of the mutual covenants herein, and intending to be legally bound hereby, the parties affirm and agree as follows: WHEREAS, GETTIN SPIFFY and MCKEE are, simultaneously with execution of this Agreement, entering into an employment arrangement; and WHEREAS, as a material inducement to MCKEE to enter into the employment arrangement, MCKEE has agreed to enter into this Covenant Not To Compete, Confidentiality (Non- Disclosure) Agreement and Non-Solicitation Agreement to protect GETTIN SPIFFY by restricting MCKEE from engaging in any unfair competition against GETTIN SPIFFY in the future; and WHEREAS, MCKEE hereby acknowledges and recognizes that MCKEE, during the course of his employment relationship with GETTIN SPIFFY will obtain confidential information and proprietary information, including but not limited to names of customers, phone numbers, customer information, cost/quote/bid information, billing records, and other pertinent business, public or private, confidential or proprietary information which is necessary for GETTIN SPIFFY to use and rely during and after any employment relationship with MCKEE; and NOW THEREFORE, for good and valuable consideration, the adequacy and sufficiency is hereby acknowledge by both parties hereto,_ GETTIN SPIFFY and MCKEE agree as follows: COVENANT NOT TO COMPETE - VEHICLE PAINT TOUCH-UP, PAINT CHIP AND PAINT REPAIRS 1. In consideration of the terms and conditions of the his employment by GETTIN SPIFFY and the sum of TEN DOLLARS ($10.00) , receipt of which is hereby acknowledged and other and valuable consideration for MCKEE'S agreement not to compete with the GETTIN SPIFFY while GETTIN SPIFFY is in the business of providing paint auto touch-up, paint chip and general limited painting repair to damaged motor vehicles in various south Central Pennsylvania counties, including Adams, Franklin, Dauphin, York, Perry, Juniata, Snyder, Huntingdon, Northumberland, Schuylkill, Lebanon, Centre, Lancaster and Cumberland, MCKEE and having the advice of an attorney or the oppor to seek the advice thereof, hereby, agrees - y coP.•ina ion, that MCKEE will not for r5 ll a period o wenty (20) yea = from the date of termination 0 1. of his em• oyment wits cz IN SPIFFY, for any reason, cause AiAL or without . • -, individually or in conjunction with an lmlt other _.- •n or entity, own, manage, operate, control be ployed or retained by, participate in or be connect eyCJI,P any mann- - with a business which involves vehicle paint • -up, paint chip and general limited painting repair to damaged motor vehicle and similar types of mechanical LOCc"l equipment associated with paint repairs in various south ilk.' Central Pennsylvania counties, including Adams, Franklin, 1)00 ' , Dauphin, York, Perry, Juniata, Snyder, Huntingdon, Northumberland, Schuylkill, Lebanon, Centre, Lancaster and �wr. Cumberland. NON-SOLICITATION - VEHICLE PAINT TOUCH-UP, PAINT CHIP AND PAINT REPAIRS 2. MCKEE, either as an employee, consultant, principal, partner, stockh• • - corporate officer, director or any other indiv' - •a ._representa ive capacity, shall not, for a period of wenty (20) years from the date of 5\1(5 termination of is employment f any reason, cause or ;Y1, without cause, h GETTIN- PIFFY: 4C,Pr i. Directly or indirectly solicit or attempt to solicit any business or trade fro , IN SPIFFY and GETTIN SPIFFY'S actual o,-- •spective c, stomers or clients; or ii. Directly or indirectly employ or attempt to employ any employee of GETTIN SPIFFY; or iii. Directly or indirectly divert or attempt to divert business away from GETTIN SPIFFY; or iv. Directly or indirectly, encourage, direct or advise any independent contractor or consultant to end a relationship with GETTIN SPIFFY. 2 NON—DISCLOSURE (CONFIDENTIALITY) PROVISION — VEHICLE PAINT TOUCH—UP, PAINT CHIP AND PAINT REPAIRS 3. MCKEE hereby acknowledges and agrees that he will become privy to and in possession of certain confidential, non-public or proprietary information concerning the business and operations of GETTIN SPIFFY, including, but not limi te, mailing lis • ' - - , - = - ompilati• a - • information, records, advertising metho. production methods, techniques activities and . - - - CP' or��, information. As a c• • • ' = • s ing such information M and execution of the terms of this Agreement, MCKEE and C0e GETTIN SPIFFY agree that MCKEE shall treat confidentially ) 9 ����1, such inform- • ' hed by GETTIN SPIFFY to MCKEE for a \O v�� CA) perio- -- wenty (20) years - 41 the date of termination of ��� o � is em• - �«- • - = on, cause or without cause, with ETTIN SPIFFY. MCKEE and GETTIN SPIFFY agree that all 'w \1 /'t1 nformation provided by GETTIN SPIFFY to MCKEE and the terms S +V \ij 1 of this Agreement shall be kept confidential by MCKEE, and 1° MCKEE agrees not to disclose such information to anyone tr- without first obtaining the written consent of GETTIN �,n c SPIFFY. � �` QJ, , ENFORCEMENT PROVISION — VEHICLE PAINT TOUCH— UP, PAINT CHIP AND PAINT REPAIRS 4. MCKEE acknowledges that the agreements, representations, conditions, terms and acknowledgements set GV9, forth above and throughout this Agreement are reasonable W \�� ,,. and necessary in view of the nature of GETTIN SPIFFY'S businesses and in order to protect the legitimate business interests of GETTIN SPIFFY. MCKEE further acknowledge that any violation by MCKEE of the representations and agreements contained herein, or any of them, would result in irreparable injury to GETTIN SPIFFY which is not adequately compensated by money damages. Ther- that, in the event of a breach • - - ened breach by MCKEE o ija any provisions • - s Agreement, GETTIN SPIFFY shall be entitle• preliminary and permanent injunctive relie re wining MCKEE from any violation of th- - -nts -•ntained herein. MC' - - -•ges that any violation by - -xecution of this Agreement, will result in irreparable injury to GETTIN SPIFFY. MCKEE also acknowledge that in the event of any such violation, GETTIN SPIFFY shall be entitled to seek preliminary and permanent injunctive relief the necessity of proving actual damages and vA 3 . - to seek an equitable counting of all earnings, profits---N and other benefits ising from any such violation. GE w SPIFFY 'S right to see - - - . - .- cumulative and in addition to any other rights or remedies (at law or in equity) to which GETTIN SPIFFY may otherwise be entitled, including, but not limited to, suit for money damages and reasonable attorney fees. further agrees that if GETTIN SPIFFY i itutes legal action to enforce any provision of this a Agreement, MCKEE will pay for GETTIN SPIFFY'S attorneys' N fees and litigation costs incurred in enforcing this Agreement, if GETTIN SPIFFY and/ GETTIN SPIFFY obtains relief as a result of such legal action. 6. In the event that any court of competent jurisdiction shall determine that any of the restrictive agreements contained in this Agreement are inequitably broad as to any provision or any MCKEE, it is the intention of the parties that the court adjust the obligations of the MCKEE under the restrictive agreements as to any provision or any MCKEE, rather than eliminating such obligations entirely. In the event the court shall equitably adjust the restrictive agreements, the remainder of the restrictive agreements and of this Agreement shall remain in full force and effect. REPRESENTATIONS OF MCKEE 7. MCKEE recognizes and acknowledges that this is a legal and binding document intended to be incorporated within and construed with his employment with GETTING A e SPIFFY. MCKEE acknowledges that this is a legally binding c9- oi-- document which may restrict MCKEE'S pursui er i t actions of a competitive nature in th usiness conducted C0- by GETTIN SPIFFY. Further, MCKEE ackn led es th 1- 3 .ra have reviewed this Agreement with legal counsel of their own choosing explaining the meaning of this Agreement, or has knowingly and voluntarily waived the opportunity to do so. MISCELLANEOUS PROVISIONS 8. THIS Agreement contains the final and entire understanding between the MCKEE and GETTIN SPIFFY with respect to the subject matter contained herein. This Agreement may be altered or amended only by written agreement signed by both MCKEE and GETTIN SPIFFY. 4 9. If any covenant or provision contained in this Agreement is found by any Court having competent jurisdiction to be unreasonable in duration or the character of such restriction, such covenant or provision shall not be rendered unenforceable thereby, but rather the duration or character of restriction of such covenant or provision shall be deemed reduced or modified with retroactive effect to render such covenant or provision reasonable, and therefore such covenant or provision shall be enforced as modified. If any such court having competent jurisdiction does not revise the covenant or provision in question at the time, the parties hereto shall mutually agree to a revision having an effect as close as permitted by law to the provision declared unenforceable. Should, however, a court of competent jurisdiction deem any covenant or provision contained herein unenforceable, only said covenant or provision will be considered unenforceable, deemed severed from this Agreement, with the remaining covenants and provisions surviving and enforceable. 10. This Agreement shall be interpreted under the laws of the Commonwealth of Pennsylvania and construed as is prepared for the benefit of both parties. 11. Nothing herein shall be construed to prohibit GETTIN SPIFFY from assigning the terms of this Agreement to a successor owner or affiliated company, and MCKEE agrees to the assignment of this Agreement under the same terms and conditions. 12. Neither the failure by GETTIN SPIFFY to insist upon strict compliance with any provision of this Agreement nor any decision by GETTIN SPIFFY not to assert any right it may have to enforce any such provision shall be deemed a waiver of any of the provisions, rights or remedies contained in this Agreement. (INTENTIONALLY LEFT BLANK) 5 • IN WITNESS WHEREOF, GETTIN SPIFFY and MCKEE, intending to be legally bound hereby, have caused this Agreement to be signed as of the day and year first written above. WITNESS: Gregory H. Anspach, General Partner, GETTIN SPIFFY Travis Myers, General Partner GETTING SPIFFY WITNESS: Jesse Mckee, Individually (Employee) • COMMONWEALTH OF PENNSYLVANIA • SS. • COUNTY OF CUMBERLAND On this,the day of December,2011,before me, a Notary Public, personally appeared GREGORY H.ANSPACH, who acknowledged himself to be a General Partner of GETTING SPIFFY, a Pennsylvania General Partnership,and that he as such General Partner,being authorized to do so,executed the same for the purposes therein contained by signing the his name as a General Partner. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: • COMMONWEALTH OF PENNSYLVANIA SS. • COUNTY OF CUMBERLAND On this, the day of December, 2011,before me, a Notary Public, personally appeared Travis Myers,who acknowledged himself to be a General Partner of GETTING SPIFFY, a Pennsylvania General Partnership,and that he as such General Partner, being authorized to do so,executed the same for the purposes therein contained by signing the his name as a General Partner. IN WITNESS WHEREOF,I hereunto set my hand and official seal. Notary Public My Commission Expires: 6 COMMONWEALTH OF PENNSYLVANIA • SS. COUNTY OF CUMBERLAND On this, the day of December, 2011,before me, a Notary Public, personally appeared Jesse McKee, an adult individual,known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires: 7 Exhibit "B" COVENANT NOT TO COMPETE AND CONFIDENTIALITY (NON—DISCLOSURE)i'B'AGRE EME NT THIS AGREEMENT is made this 2 day of February, 2012, by and between GREGORY H. ANSPACH, an adult individual, and TRAVIS MYERS, an adult individual, trading and doing business as GETTING SPIFFY, a Pennsylvania General Partnership, all with a principal place of business and address of 4902 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, (hereinafter collectively referred to as "GETTIN SPIFFY") , and JESSE MCKEE, an adult individual with an address of 99 Ridge Road, Newville, Pennsylvania, (hereinafter referred to as "MCKEE") . In consideration of the mutual covenants herein, and intending to be legally bound hereby, the parties affirm and agree as follows: WHEREAS, GETTIN SPIFFY and MCKEE are, simultaneously with execution of this Agreement, entering into an employment arrangement; and WHEREAS, as a material inducement to MCKEE to enter into the employment arrangement, MCKEE has agreed to enter into this Covenant Not To Compete, Confidentiality (Non- Disclosure) Agreement and Non-Solicitation Agreement to protect GETTIN SPIFFY by restricting MCKEE from engaging in any unfair competition against GETTIN SPIFFY in the future; and WHEREAS, MCKEE hereby acknowledges and recognizes that MCKEE, during the course of his employment relationship with GETTIN SPIFFY will obtain confidential information and proprietary information, including but not limited to names of customers, phone numbers, customer information, cost/quote/bid information, billing records, and other pertinent business, public or private, confidential or proprietary information which is necessary for GETTIN SPIFFY to use and rely on during and after any employment relationship with MCKEE; and NOW THEREFORE, for good and valuable consideration, the adequacy and sufficiency is hereby acknowledged by both parties hereto, GETTIN SPIFFY and MCKEE agree as follows: COVENANT NOT TO COMPETE — VEHICLE PAINT TOUCH—UP, PAINT CHIP AND PAINT REPAIRS 1. In consideration of the terms and conditions of his employment by GETTIN SPIFFY and the sum of TEN DOLLARS ($10.00) , receipt of which is hereby acknowledged and other and valuable consideration for MCKEE'S agreement not to compete with GETTIN SPIFFY while GETTIN SPIFFY is in the business of providing paint auto touch-up, paint chip and general limited painting repair to damaged motor vehicles in various south Central Pennsylvania counties, including Adams, Franklin, Dauphin, York, Perry, Juniata, Snyder, Huntingdon, Northumberland, Schuylkill, Lebanon, Centre, Lancaster and Cumberland, MCKEE and having the advice of an attorney or the opportunity to seek the advice thereof, hereby agrees, in any combination, that MCKEE will not for a period of five (5) years from the date of termination of his employment with GETTIN SPIFFY, for any reason, cause or without cause, individually or in conjunction with any other person or entity, own, manage, operate, control, be employed or retained by, participate in or be connected in any manner with a business which involves vehicle paint touch-up, paint chip and general limited painting repair to damaged motor vehicle and similar types of mechanical equipment associated with paint repairs in various south Central Pennsylvania counties, including Adams, Franklin, Dauphin, York, Perry, Juniata, Snyder, Huntingdon, Northumberland, Schuylkill, Lebanon, Centre, Lancaster and Cumberland. Notwithstanding the foregoing limitations (which shall be strictly constructed) , for purposes of providing MCKEE with an opportunity to gain employment in the event of termination for any reason, GETTIN SPIFFY and MCKEE agree that MCKEE may obtain employment or participate as an employee with a business performing general automotive repair or restorative auto body repair work or reconstruction. In no event shall MCKEE engage in any type of painting repair or painting reconstruction as set forth in the preceding paragraph. NON-SOLICITATION - VEHICLE PAINT TOUCH-UP, PAINT CHIP AND PAINT REPAIRS 2. MCKEE, either as an employee, consultant, principal, partner, stockholder, corporate officer, director or any other individual representative capacity, shall not, for a period of five (5) years from the date of termination of his employment for any reason, cause or without cause, with GETTIN SPIFFY: i. Directly or indirectly solicit or attempt to solicit any business or trade from the GETTIN SPIFFY and GETTIN SPIFFY'S actual or prospective customers or clients; or ii. Directly or indirectly employ or attempt to employ any employee of GETTIN SPIFFY; or 4 iii. Directly or indirectly divert or attempt to divert business away from GETTIN SPIFFY; or iv. Directly or indirectly, encourage, direct or advise any independent contractor or consultant to end a relationship with GETTIN SPIFFY. NON-DISCLOSURE (CONFIDENTIALITY) PROVISION - VEHICLE PAINT TOUCH-UP, PAINT CHIP AND PAINT REPAIRS 3. MCKEE hereby acknowledges and agrees that he will become privy to and in possession of certain confidential, non-public or proprietary information informatiori concerning the business and operations 'of GETTIN SPIFFY,. including, but not limited to, mailing lists, pricing, .trade secrets, compilations of information, records, advertising methods, production methods, techniques., activities and account information. As a condition of furnishing' such information and execution of the terms of this Agreement, MCKEE and GETTIN SPIFFY agree that MCKEE shall treat confidentially such information furnished by GETTIN SPIFFY to MCKEE for a period of five (5) years from the date -of termination of his employment for any reason, cause or without cause, with GETTIN SPIFFY. MCKEE and GETTIN'SPIFFY agree that all information provided by GETTIN SPIFFY to MCKEE 'and the terms of this Agreement shall be kept confidential by MCKEE, and MCKEE agrees not .to disclose such -i.nforriation to anyone without first obtaining the .writteri.consent of GETTIN SPIFFY. ENFORCEMENT PROVISION - VEHICLE PAINT TOUCH- UP, PAINT CHIP AND PAINT REPAIRS • 4. MCKEE acknowledges that the . agreements, representations, conditions, terns and a acknowledgements set forth above and throughout this Agreement are reasonable and necessary in view of the nature of GETTIN SPIFFY`S businesses and in order to protect the' legitimate business interests of GETTIN SPIFFY. MCKEE further acknowledge that any violation by MCKEE of the representations and agreements contained herein, or any of them, would result in irreparable injury to GETTIN SPIFFY which is not adequately compensated by money damages. - Therefore,. MCKEE agrees that, in the event of a breach or threatened breach by MCKEE of any provisions of this Agreement, GETTIN SPIFFY shall be entitled to preliminary and permanent injunctive relief 1 restraining MCKEE from any violation of the agreements contained herein. MCKEE acknowledges- that any violation by MCKEE, after execution of this Agreement, will result in irreparable injury to GETTIN SPIFFY. MCKEE also acknowledges that in the event of any such violation, GETTIN SPIFFY shall be entitled to seek preliminary and permanent injunctive relief without the necessity of proving actual damages and to seek an equitable accounting of all earnings, profits and other benefits arising from any such violation. GETTIN SPIFFY'S right to seek equitable relief shall be cumulative and in addition to any other rights or remedies (at law or in equity) to which GETTIN SPIFFY may otherwise be entitled, including, but not limited to, suit for money damages and reasonable attorney fees. 5. MCKEE further agrees that if GETTIN SPIFFY institutes legal action to enforce any provision of this Agreement, MCKEE will pay for GETTIN SPIFFY'S attorneys' fees and litigation costs incurred in enforcing this Agreement, if GETTIN SPIFFY obtains relief as a result of such legal action. 6. In the event that any court of competent jurisdiction shall determine that any of the restrictive agreements contained in this Agreement are inequitably broad as to any provision, it is the intention of the parties that the court adjust the obligations of MCKEE under the restrictive agreements, rather than eliminating such obligations entirely. In the event the court shall equitably adjust the restrictive agreements, the remainder. of the restrictive agreements and of this Agreement shall remain in full force and effect. REPRESENTATIONS OF MCKEE 7. MCKEE recognizes and acknowledges that this is a legal and binding document intended to be incorporated within and construed with his employment with GETTING SPIFFY. MCKEE acknowledges that this is a legally binding document which may restrict MCKEE'S pursuit of certain actions of a competitive nature in the business conducted by GETTIN SPIFFY. Further, MCKEE acknowledges that he has reviewed this document in advance of signing, suggested certain modifications which were made and that MCKEE has had the time and opportunity to review this Agreement with legal counsel of his own choosing explaining the meaning of this Agreement, or has knowingly and voluntarily waived the opportunity to do so. 4 MISCELLANEOUS PROVISIONS 8. THIS Agreement contains the final and entire understanding between MCKEE and GETTIN SPIFFY with respect to the subject matter contained herein. This Agreement may be altered or amended only by written agreement signed by both MCKEE and GETTIN SPIFFY. 9. If any covenant or provision contained in this Agreement is found by any Court having competent jurisdiction to be unreasonable in duration or the character of such restriction, such covenant or provision shall not be rendered unenforceable thereby, but rather the duration or character of restriction of such covenant or provision shall be deemed reduced or modified with retroactive effect to render such covenant or provision reasonable, and therefore such covenant or provision shall be enforced as modified. If any such court having competent jurisdiction does not revise the covenant or provision in question at the time, the parties hereto shall mutually agree to a revision having an effect as close as permitted by law to the provision declared unenforceable.. Should, however, a court of competent jurisdiction deem any covenant or provision contained herein unenforceable, only said covenant or provision will be considered unenforceable, deemed severed from this Agreement, with the remaining covenants and provisions surviving and enforceable. 10. This Agreement shall be interpreted under the laws of the Commonwealth of Pennsylvania and construed as is prepared for the benefit of both parties. 11. Nothing herein shall be construed to prohibit GETTIN SPIFFY from assigning the terms of this Agreement to a successor owner or affiliated company, and MCKEE agrees to the assignment of this Agreement under the same terms and conditions. 12. Neither the failure by GETTIN SPIFFY to insist upon strict compliance with any provision of this Agreement nor any decision by GETTIN SPIFFY not to assert any right it may have to enforce any such provision shall be deemed a waiver of any of the provisions, rights or remedies contained in this Agreement. 5 . , • IN WITNESS WHEREOF, GETTIN SPIFFY and MCKEE, intending to be legally bound hereby, have caused this Agreement to be signed as of the day and year first written above. WITN'S5: 111 Gr=•or ' 1: . An pa :r General Partner, GETTIN SPIFFY k1/4A Q1k-C T vis Myers, ral Partner GETTING SPIFF WI ESS 0 4 J se McKee, Individually (Employee) COMMONWEALTH OF PENNSYLVANIA • SS. COUNTY OF CUMBERLAND • On this, the 2 3r day of February, 2012, before me, a Notary Public, personally appeared GREGORY H. ANSPACH, who acknowledged himself to be a General Partner of GETTING SPIFFY, a Pennsylvania General Partnership, and that he as such General Partner, being authorized to do so, executed the same for the purposes therein contained by signing his name as a General Partner. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public _! m ,411,4 A • My Commission Ex• ' es: BECKY NOTARIAL SEAL Mechanicsburg ,�Co. My Comml sloe Expo Nov.19,2014 6 - _ • COMMONWEALTH OF PENNSYLVANIA • SS. COUNTY OF CUMBERLAND • On this, the ;Ord. .day_.of February, 2012, before me, a Notary Public, personally_apes'ked TRAVIS MYERS, who acknowledged himself to be a. General Partner of GETTING SPIFFY, a Pennsylvania General Partnership, and that he as such General Partner, being authorized to do so, executed the same for the purposes therein contained by signing his name as a General Partner. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public E 2� 5 My Commission Ex �:/' f NOTARIAL SEAL M.KNISELY,Notarp Pubk Nkd u�csbut9 Born, Cm My Convulsion Explr5 Nov.19,2014. COMMONWEALTH OF PENNSYLVANIA • SS. COUNTY OF CUMBERLAND .• On this, the day of February, 2012, before me, a Notary Public, personally appeared JESSE MCKEE, an adult individual, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public_Ara __ , 1. My Commission Expire : NOTARIAL SEAL BECKY M.KNISELY,Notary PubNc - Medhanicsburg Born,Cumberland Co. My Commission Wes Nov.19,2014, • CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Defendants' Answer to Petition and Rule to Show Cause upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: SEAN M. SHULTZ, ESQUIRE SAIDIS, SULLIVAN & ROGERS 26 WEST HIGH STREET CARLISLE, PA 17013 11P Date: February ,26, 2014 A ew C. Sheely, Esqui -