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HomeMy WebLinkAbout14-1871 Supreme Couff of,Pennsylvania Court; ++ U Common Pleas For Prothonotary Use Only: ~ I. Civ>t1,Cover,Sheet , 1 =,� ( t ` t ,I Docket No: Cumbe` land Ord/ County 1(f rf j U The information collected on this form is used solely for court administration purposes. This form does not suppleme or replace the filing and service of pleadings or other papers as required by lary or rules of court. Commencement of Action: S E3 Complaint El Writ of Summons F-1 Petition E Transfer from Another Jurisdiction 0 Declaration of Taking C Lead Plaintiffs Name: L ead Defendant's Name: T Hearing Instruments, Inc. Kellie Tankersley I Are money damages requested? fix. Yes [ No Dollar Amount Requested: within arbitration limits O (check one) E]outside arbitration limits N Is this a Class Action Suit? 0 Yes No Is this an MDJAppeal? El Yes El No A Name of Plaintiff /Appellant's Attorney: Todd J. Shill and Holly L. Cline Check here if you have no attorney (are a Self - Represented JlPro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS rl Intentional Q Buyer Plaintiff Administrative Agencies [� Malicious Prosecution Q Debt Collection: Credit Card Q Board of Assessment [] Motor Vehicle [ Debt Collection: Other Q Board of Elections n Nuisance 0 Dept. of Transportation Premises Liability [] Statutory Appeal: Other S [] Product Liability (does not include �'j mass tort) (] Employment Dispute: [� Slander/Libel/ Defamation Discrimination C 0 Other: x Employment Dispute: Other E] Zoning Board Breach of Contract (� Other: I Other: O MASS TORT Asbestos N 0 Tobacco 0 Toxic Tort -DES Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS Q Toxic Waste rl Ejectment E] Common Law /Statutory Arbitration B M Other: Q Eminent Domain/Condemnation Q Declaratory Judgment Ground Rent Mandamus 0 Landlord/Tenant Dispute © Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial Quo Warranto Dental Partition © Replevin E l Legal Quiet Title Other: Medical Other: Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HEARING INSTRUMENTS, INC., A 3425 Simpson Ferry Road, Suite 202 Case No. �$� Civil Term Camp Hill, PA 17011 ; Civil Action Plaintiff V. , M KELLIE TANKERSLEY 26 Fifth Street M Pittsburgh, PA 15215 r; Defendant ; - r PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons against the Defendant in the above - captioned action. The Writ shall be issued and forwarded to the Sheriff of Cumberland County to deputize service of the Writ of Summons upon Allegheny County Sheriff's Office. Todd J. Shill, Esquire Holly L. Cline, Esquire Signal& o Attorney RHOADS & SINON LLP One South Market Square P. O. Box 1146 Harrisburg, PA 17108 -1146 Supreme Court ID No. 69225 (717) 233 -5731 Supreme Court ID No. 208141 p Attorneys for Plaintiff Date: March 28, 2014 3 7S p C# 15 WRIT OF SUMMONS p #—,3 0 3 / 1/ TO THE ABOVE NAMED DEFENDANT: G Y0 UT AlkE NOTIFIED THAT THE ABOVE -NAMED PLAINTIFF HAS COMMENCED -AN ACTION AGAINST U. Prothonotary Date: 'r 941716.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HEARING INSTRUMENTS, INC., 3425 Simpson Ferry Road, Suite 202 Camp Hill, PA 17011 : Civil Action No. 2014-1871 Plaintiff V. KELLIE TANKERSLEY 26 Fifth Street Pittsburgh, PA 15215 Defendant PRAECIPE TO REISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly reissue the Writ of Summons in the above-captioned matter that was originally issued on March 28, 2014 and attached hereto. Reissued Writ of Summons shall be forwarded to Attorney / X Sheriff Date: April 23, 2014 949784.1 By: Respectfully submitted, RHOADS & SINON LLP Toed J. Shillr sq i ire Holly L. Cli e, Esquire RHOADS & SINON LLP One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY L.: , HE f'R0 iliONO IA OFF ICE OFTHE HERIFF ?Oh NY 20 PM 3: 1, •. CUMBERLAND COUNTY PENNSYLVANIA Hearing Instruments, Inc. vs. Kellie Tankersley Case Number 2014-1871 SHERIFF'S RETURN OF SERVICE 04/25/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Kellie Tankersley, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Allegheny, Pennsylvania to serve the within Writ of Summons according to law. 05/06/2014 03:15 PM - The requested Writ of Summons served by the Sheriff of Allegheny County upon Kellie Tankersley, personally, at 289 Mount Nebo Pointe Road, Pittsburgh, PA 15237. William Mullen, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.00 SO ANSWERS, May 14, 2014 RONNY R ANDERSON, SHERIFF (c) CountySuie Sheriff, Te'eosoft, inc. ronn R Anderson Sheriff Jody S Smith Chief Deputy SHERIFF'S OFF E OF CUMBERLAND COUNTY of Cum') OFFICE OF THE SHERIFF Richard W Stewart Solicitor Hearing Instruments, Inc. vs. Kellie Tankersley Case Number 2014-1871 O N • Service Details: o Category: X Manner: w Notes: u) re SERVICE COVER SHEET Civil Action - Writ of Summons Deputize Expires: 05/23/2014'. Zone: Warrant: Serve To: Name: {Kellie Tankersley Primary 289 Mount Nebo Pointe Road Address: Pittsburgh, PA 15237 Phone: Alternate Address: Phone: slam S Gt_c.t a DOB: Served: Adult In Charge: Relation: Date: dult In Charge Posted • Other cS [ J, Deputy: [0 [Attorney / Originator: Name: Rhoads & Simon LLP Phone: Time: Mileage: 152 CA' 717-233-5731 [Service Attempts: Date: Time: v • Mileage: N Deputy: TANKERSLEY, KELLIE Notes / Special Instructions: ctieu '63,0_ detail 0/4. n cOMMONWEALTH OF PENNSYLVANI Notarial Seal otary Public Eda lean Woodward, County Oty of Pl burgh, Allegheny M Comrnlsslon Expires May 26, 2016 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Allegheny County to e documents herewith and make return thereof according to law. Return To: Cumberland County Sheriffs Office One Courthouse Square Carlisle, PA 17013 ic) CounrySu.te Sheriff. Te:eosott. Inc Ronny R Anderson, Sheriff Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY V Di ell OFFICE QF Tri £l �F IFF f: ,}.D—OF Fid THE PROTHONO ;A1 2011sM Y 20 PM 3: 22 `UPENN YLVANANtr Hearing Instruments, Inc. vs. Case Number Kellie Tankersley 2014-1871 SHERIFF'S RETURN OF SERVICE 03/31/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Kellie Tankersley, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Allegheny, Pennsylvania to serve the within Writ of Summons according to law. 04/16/2014 03:36 PM - The requested Writ of Summons returned by the Sheriff of Allegheny County, the within named Defendant Kellie Tankersley, not found. William Mullen, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.00 SO ANSWERS, April 28, 2014 RONNY R ANDERSON, SHERIFF rri CountySuite Sheriff, Teleosott. Inc. 0 N Ronny R Anderson Sheriff Jody S Smith` Chief Deputy fV SHERIFF'S OFFICE OIF CUMBERLAND COUNTY I I /87 f Hearing Instruments, Inc. vs. Kellie Tankersley Via:.=;�e%r`•�;?'« OFFICE OF THE S44ERIFF Richard W Stewart Solicitor Case Number 2014-1871 SERVICE COVER SHEET N [Service Details: o Category: n x w Civil Action - Writ of Summons Manner: Deputize Notes: �:cS: N a [Serve To: Zone: Expires: L 04/25/2014 1 Warrant: Name: Primary Address: H Ii Phone: E= Lt.! Alternate ce Address: Phone: w N Kellie Tankersley 26 Fifth Street Pittsburgh, PA 15215 DOB: [Final Service: Served: Adult In Charge:, Relation: Date: Deputy: Personally • Adult In Charge • Posted • Other Iil&a '-lJ Time: Mileage: j53(, [Attorney/ Originator:_ Name: Rhoads & Simon LLP Phone: 717-233-5731 Service Attempts: Date: Time: co v Mileage: N Deputy: w 7,1 -J w w Now, March 31, 2014 I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Allegheny County to —I execute service of the documents herewith and make return thereof according to law. Return To: Z Cumberland County Sheriffs Office H One Courthouse Square Carlisle, PA 17013 rf 6 Notes / Specialinstructions: • I1A ci/ tcV (i.:1 Cotmh,'Snrte Shcii tf Te'eosofl, Inc Ronny R Anderson, Sheriff rt, r [HE IN THE COURT OF COMMON PLEAS OF ,n, 4 r '` D fr°r'ti5! CUMBERLAND COUNTY, PENNSYLVANIA JON _ CIVIL DIVISION PE N/ s YL rC ©U v T i HEARING INSTRUMENTS, INC., : Civil Action No. 2014-1871 Plaintiff v. KELLIE TANKERSLEY Defendant PROOF OF SERVICE Attached hereto as Exhibit "A" is a true and correct copy of the Sheriff's Return of Service of the Writ of Summons, which was served upon the above -referenced Defendant on May 6, 2014. By: Date: June 4, 2014 Respectfully submitted, RHOADS & SINON LLP A .02J4 ,gp, Todd J. Shill, It wire Holly L. Cline, Esquire RHOADS & SINON LLP One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff EXHIBIT "A" i-iiimliell 690169.1 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY OFFICE QFThE SPER,IPP Hearing Instruments, Inc. vs. Kellie Tankersley Case Number. 2014-1871 SHERIFF'S RETURN OF SERVICE 04/25/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Kellie Tankersley, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Allegheny, Pennsylvania to serve the within Writ of Summons according to law. 05/06/2014 03:15 PM - The requested Writ of Summons served by the Sheriff of Allegheny County upon Kellie Tankersley, personally, at 289 Mount Nebo Pointe Road, Pittsburgh, PA 15237. William Mullen, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.00 SO ANSWERS, 1 May 14, 2014 RONW R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoft inc. onnA)Anderson Sheriff Jody S Smith Chief Deputy SHERIFF'S OFFICE OF CUMBERLAND COUNTY \soy at Cu int,tr., r MC OFKIGE CF 71-.- �RIFr Richard W Stewart Solicitor Hearing Instruments, Inc. vs. Kellie Tankersley Case Number 2014-1871 v 0 N M Service Details: SERVICE COVER SHEET . Ix) Category: .Civil Action - Writ of Summons x Manner: Deputize w Notes: in Q a- x 0 D Serve To: Name: Kellie Tankersley v.\Primary 289 Mount Nebo Pointe Road ddress: Pittsburgh, PA 15237 ce Phone: ,SFPn S G.t a DOB: z -3(0q - 0-)-c-CO Alternate a Address: 0 w Phone: z I - z ;Attorneys Originator: 2 Name: Rhoads & Simon LLP m °O • '" .Service Attempts: Expires: Zone: 05/23/2014 J Warrant: Date: Time: v Mileage: N Deputy: 1 "Notes / Special Instructions: W t � ?;l:a z/4, t n . Final Servic - • Served: Adult In Charge: Relation: Date: dult In Charge Posted • Other Ls/t2/iW Deputy: [ 1 Phone: Time: Mileage: 717-233-5731 717-233-5731 W . w Now, N execu re Lu Z I- COM1,4014i/EA "TH OF PENNSYLVANIA Notarial Se Eda leen Woodward, Seal City of p;sburg , County My Comrilsston Expires May 2 2016MENEM. PENNSYLVANIA ASSOCIATION of NOTARIES I I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Allegheny County to e documents herewith and make return thereof according to law. Return To: Cumberland County Sheriffs Office One Courthouse Square Carlisle, PA 17013 I ,: e �'nmiq Su tc br._riff Te ex,crt in:: Ronny R Anderson, Sheriff CERTIFICATE OF SERVICE I hereby certify that on this 4th day of June, 2014, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant r T H E P R O T H 1O `TA rR'i' ":,314 JUN 1 ! PM 2: 56 CUMBERLAtID COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO. 2014--1871 MOTION FOR PRELIMINARY INJUNCTION Plaintiff Hearing Instruments, Inc. ("Hearing Instruments"), by and through its counsel, Rhoads & Sinon LLP, hereby moves this Court pursuant to Pa. R.C.P. No 1531 for an Order granting a Preliminary Injunction in its favor, and in support thereof, avers the following: 1. The Complaint, filed by Hearing Instruments on contemporaneously herewith, is attached as Exhibit 1 and is incorporated by reference as though set forth in full. 2. Hearing Instruments moves for a Preliminary Injunction pursuant to Pa. R.C.P. No. 1531. 3. Defendant Kellie Tankersley ("Tankersley" or "Defendant") has irreparably harmed Hearing Instruments and will continue to irreparably harm Hearing Instruments unless this Court intervenes. Tankersley, a former employee of Hearing Instruments, has breached her noncompetition covenant by accepting employment with Hearing Lab Technology, LLC or Liberty Hearing Aids (collectively "Liberty"), a direct competitor of Hearing Instruments. Upon information and belief, Hearing Instruments' proprietary and confidential information has been and will continue to be unlawfully transferred by Tankersley to Liberty. 4. As noted in the Complaint, Tankersley has breached, and Hearing Instruments suspects that she will continue to breach, her contractual and/or common law duties owed to Hearing Instruments, including: a. Tankersley's agreement to not engage in any sort of competitive activity with Hearing Instruments for a period of two (2) years and within a twenty (20) mile radius of each Hearing Instruments location where she worked following termination of her employment; b. Tankersley's agreement to not solicit Hearing Instruments' clients or customers for a period of two (2) years after termination of her employment; c. Tankersley's agreement to not solicit Hearing Instruments' employees for a period of two (2) years after termination of her employment; d. Tankersley's agreement to not disclose Hearing Instruments' confidential and proprietary information; e. Tankersley's common law duty not to interfere with Hearing Instruments' contractual and prospective contractual relations with its employees, customers, and prospective customers; f. Tankersley's statutory and/or common law duty not to misappropriate or disclose Hearing Instruments' confidential information or trade secrets; and 2 g. Tankersley's common law duty not to unfairly compete with Hearing Instruments. 5. For the reasons stated in the Complaint and accompanying Memorandum of Law, unless and until Tankersley is enjoined from breaching her contractual and/or common law duties to Hearing Instruments, Hearing Instruments is and will continue to be irreparably harmed in the nature of: a. loss of and/or damage to relationships with employees, clients, and customers, both current and prospective, among others; b. loss of business reputation; and c. loss and disclosure of Hearing Instruments' confidential and proprietary information. 6. Relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by money damages. 7. Greater injury will occur from refusing to grant the injunction than from granting the injunction. 8. The injunction will restore the parties to their status quo as it existed before the alleged wrongful conduct. 9. Hearing Instruments is likely to prevail on the merits. 10. The injunction is reasonably suited to abate the offending activity. 11. The public interest will not be harmed if the injunction is granted. 3 WHEREFORE, Plaintiff Hearing Instruments, Inc. respectfully requests that a preliminary injunction in the form attached hereto be issued which enjoins Defendant Kellie Tankersley from engaging in the wrongful conduct described above. Respectfully submitted, By: 4 RHOADS : ' ON LLP Todd J. Shill Stephen Moniak One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff, Hearing Instruments, Inc. EXHIBIT 1 Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO.2014--1871 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 ti Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., ) ) Plaintiff ) ) v. ) ) KELLIE TANKERSLEY, ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO. 2014--1871 Defendant ) COMPLAINT Plaintiff Hearing Instruments, Inc. ("Hearing Instruments"), by and through its counsel, Rhoads & Sinon LLP, brings this action in law and equity against Defendant Kellie Tankersley (hereinafter "Defendant" or "Tankersley"). INTRODUCTION Hearing Instruments brings this action to stop the wrongful conduct of the Defendant who is currently employed by Hearing Lab Technology, LLC or Liberty Hearing Aids (collectively "Liberty"), a direct competitor of Hearing Instruments' hearing aid and hearing aid accessory business. Tankersley is a former employee of Hearing Instruments, and she is subject to restrictive covenants contained in her Employment Agreement with Hearing Instruments. Upon information and belief, Tankersley has breached her Employment Agreement by competing with Hearing Instruments within the proscribed geographic area, soliciting Hearing Instruments' customers and/or employees, and disclosing Hearing Instruments' confidential and proprietary information. PARTIES 1. Hearing Instruments is a Pennsylvania corporation with a principal place of business at 3425 Simpson Ferry Road, Suite 202, Camp Hill, Cumberland County, Pennsylvania. Hearing Instruments is a franchisee of Miracle -Ear, a manufacturer and distributor of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle -Ear locations across the Commonwealth of Pennsylvania. 2. Defendant is an adult individual who until late March, 2014, resided at 26 Fifth Street, Pittsburgh, Pennsylvania. Defendant may be served at her place of business located at 289 Mount Nebo Pointe Road, Pittsburgh, Pennsylvania 15237. 3. Tankersley is a former employee of Hearing Instruments, and upon information and belief, is a current employee of Liberty. JURISDICTION AND VENUE 4. This action arises under the laws of this Commonwealth and is within the subject matter jurisdiction of this court. 5. This Court has personal jurisdiction over Defendant pursuant to 42 Pa. C.S. §§5301(a)(1). 6. Venue in this Court is proper pursuant to Pa. R.C.P. 1006(a)(1) because Defendant accepted and signed her Employment Agreement with Hearing Instruments at its headquarters in Cumberland County. 2 FACTUAL BACKGROUND 7. Tankersley initially worked for Hearing Instruments from February 14, 2011 through February 24, 2012, and more recently was employed by Hearing Instruments from January 2, 2013 until she left the company on or about March 22, 2013. 8. In connection with and in consideration of her most recent employment with Hearing Instruments, Tankersley signed an Employment Agreement that contained certain employment restrictive covenants. A true and correct copy of Tankersley's Employment Agreement with Hearing Instruments is attached hereto as Exhibit A. 9. Tankersley signed the Employment Agreement at Hearing Instruments' corporate headquarters in Camp Hill, Cumberland County, PA and also completed all corporate training at Hearing Instruments' Camp Hill location. 10. As part of the Employment Agreement, Tankersley acknowledged that she would have access to Hearing Instruments' confidential and proprietary information, including, inter alia, its customer lists, and agreed that she would not, at any time, use or otherwise disclose such information for any purpose other than for the purpose and benefit of Hearing Instruments. (See Employment Agreement (Ex. A), ¶¶5,8; see also Sycle Confident Agreement (Ex. A) 11.) 11. It was clear that this confidential and proprietary information was only to be used within the scope of her employment with Hearing Instruments. (See Employment Agreement (Ex. A) ¶8.) 12. Moreover, the Employment Agreement signed by Tankersley contains the following restrictive covenant: During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to 3 leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which I am or may become associated, nor will I directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist,.invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof. I recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to each and every location of my employment with the Company. The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. (Employment Agreement (Ex. A), ¶15. (emphasis added).) 13. Although the initial location specified in her Employment Agreement is Greensburg, Pennsylvania, the restrictive covenant in Section 15 of Tankersley's Employment Agreement clearly applies to "each and every location of [her] employment with the Company," and is not limited to the Greensburg location. (Employment Agreement (Ex. A), ¶15.) 14. During her most recent employment with Hearing Instruments, Tankersley was assigned to and worked at the following locations: Greensburg, Pennsylvania and Aliquippa, Pennsylvania. 15. Tankersley's last day of employment with Hearing Instruments was on or about March 21, 2013. 4 16. At some point thereafter, upon information and belief, Tankersley became employed by Liberty, one of Hearing Instruments' competitors, in violation of her Employment Agreement. 17. Specifically, upon information and belief, Tankersley is currently employed at the Liberty location at 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237 in violation of her Employment Agreement, as this location is within the twenty (20) mile radius of the Aliquippa location served by Tankersley during her time with Hearing Instruments. 18. Further, Hearing Instruments also is aware that, upon Tankersley's termination with Hearing Instruments and without permission or authority to do so, she took Company property and Confidential Information, as defined in the Agreement, including, but not limited to, training and technical manuals, sales manuals and presentations and pricing information. 19. During the course of her employment with Hearing Instruments, Tankersley became familiar with confidential and proprietary information concerning, inter alia, sales methods and techniques, marketing and sales information and data, equipment costs and expenses and customer lists for both current and prospective customers. 20. Indeed, Hearing Instruments invested substantial time, money and resources in training and educating Tankersley with regard to its unique sales methods and techniques. 21. It is believed, and therefore averred that Tankersley is now making use of such confidential and proprietary information to further the business interests of Liberty in clear violation of the terms of her Employment Agreement with Hearing Instruments. 22. Accordingly, by letter dated March 19, 2014, the undersigned counsel sent a cease and desist letter to Tankersley, with a copy to Liberty, seeking confirmation that she would 5 honor the terms of her Employment Agreement with Hearing Instruments. A true and correct copy of this letter is attached hereto as Exhibit B. 23. Tankersley, through counsel, responded by way of letter dated March 28, 2014. In this letter, Tankersley denies that she is acting in violation of her Employment Agreement. A true and correct copy of this letter is attached hereto as Exhibit C. 24. To date, there have been no further communications from Tankersley. IRREPARABLE HARM 25. Tankersley agreed that the provisions of her Employment Agreement are reasonably designed to protect Hearing Instruments from irreparable harm. [See Employment Agreements (Ex. A) ¶16(c).] During her employment, she became intimately familiar with Hearing Instruments' confidential and proprietary information concerning, inter alia, sales methods and techniques, marketing and sales information and data, equipment costs and expenses, and customer lists (both current and prospective). 26. Tankersley's possession of that knowledge while working for a competitor of Hearing Instruments within the restricted geographic region will result in irreparable harm to Hearing Instruments, which the Employment Agreement was designed to protect against. 27. Hearing Instruments has a legitimate belief and concern that Defendant will interfere with Hearing Instruments' business relationships with its customers. She is likely to continue such action unless restrained. 28. Unless restrained, and because of the proprietary and confidential information that Tankersley has gained through her employment with Hearing Instruments, her employment with Liberty poses an immediate threat and would very likely cause irreparable harm to Hearing 6 Instruments' current business relationships, business opportunities, goodwill, and business reputation. 29. Unless Defendant is restrained, Hearing Instruments will likely continue to suffer the loss of customers, employees, goodwill, revenues, and profit. COUNT I Breach of Contract 30. Hearing Instruments incorporates paragraphs 1 through 29 as though fully set forth herein. 31. The Employment Agreement previously identified herein was entered into by Tankersley in connection with the commencement of her employment with Hearing Instruments, and, as such, is supported by adequate consideration. 32. Tankersley is subject to the terms and conditions of her Employment Agreement with Hearing Instruments, whereby she is prohibited from soliciting Hearing Instruments' employees or customers for a period of two (2) years, and she is prohibited from competing against Hearing Instruments, directly or indirectly, for a period of two (2) years and within a radius of twenty (20) miles of each location where she worked as an employee of Hearing Instruments. 33. Tankersley's continued employment with Liberty is in direct violation of her Employment Agreement in that she is competing with Hearing Instruments inside the twenty (20) mile restricted area. 34. Moreover, and upon information and belief, Tankersley breached her Employment Agreement by soliciting current Hearing Instruments employees to work for Liberty. 7 35. During her employment with Hearing Instruments, Tankersley learned trade secrets and obtained confidential information regarding Hearing Instruments' customer lists, marketing strategies, pricing, costs, and sales of hearing aids and hearing aid accessories. 36. Tankersley, whether consciously or unconsciously, will subject such information to disclosure while competing directly with Hearing Instruments as an employee of Liberty. 37. As a result of the foregoing, Hearing Instruments has been harmed and will continue to be harmed, and, therefore, is entitled to all relief previously agreed to by the parties pursuant to her Employment Agreement, namely, injunctive relief (both preliminarily and permanently), the receipt of compensatory and/or liquidated damages, and such other legal or equitable relief that this Court deems just and proper. COUNT II Breach of Fiduciary Duty 38. Hearing Instruments incorporates paragraphs 1 through 37 as though fully set forth herein. 39. The actions taken by Tankersley, as set forth above, constitute a breach of her fiduciary duty and obligation to Hearing Instruments arising from her confidential relationship with Hearing Instruments. 40. As a result of the aforementioned breach of fiduciary duty, Hearing Instruments will be injured in that it will suffer in its business relationships and lose customers, business, reputation, and/or goodwill. Hearing Instruments lacks an adequate remedy at law and, unless enjoined by this Court, Tankersley will continue to cause irreparable injury and damage to Hearing Instruments as a result of the wrongful acts complained of herein. 8 COUNT III Violation of Pennsylvania Uniform Trade Secrets Act 41. Hearing Instruments incorporates paragraphs 1 through 40 as though fully set forth herein. 42. As set forth above, Tankersley is in possession of valuable proprietary information and trade secrets concerning Hearing Instruments' business, and such information and trade secrets are protected by the Pennsylvania Uniform Trade Secrets Act, 12 Pa. C.S. §§5301 et seq. ("PUTSA"). 43. Defendant knows that that the aforementioned proprietary information and trade secretes were acquired under circumstances giving rise to a duty to maintain their secrecy and limit their use. 44. Defendant has used, or will inevitably use, the aforementioned proprietary information and trade secrets to the advantage of Liberty and to the detriment of Hearing Instruments. 45. Unless Defendant is enjoined from the use and disclosure of Hearing Instruments' proprietary information and trade secrets, Hearing Instruments will suffer irreparable harm and unascertainable monetary damages. 46. Defendant's actions are willful and malicious, thus subjecting her to exemplary damages. 47. As a result of the foregoing, Hearing Instruments is entitled to injunctive relief prohibiting Defendant from disclosing Hearing Instruments' proprietary information and trade secrets pursuant to 12 Pa. C.S. §5303, compensatory damages in an amount yet to be determined pursuant to 12 Pa. C.S. §5304(a), exemplary damages pursuant to 12 Pa. C.S. §5304(b), 9 attorney's fees, expenses, and costs pursuant to 12 Pa. C.S. §5305, and such other legal or equitable relief that this Court deems just and proper. COUNT IV Tortious Interference with Current and Prospective Business Relationships 48. Hearing Instruments incorporates paragraphs 1 through 47 as though fully set forth herein. 49. The actions taken by Defendant, as set forth above, were, and are, intended to harm Hearing Instruments by interfering with Hearing Instruments' current and prospective business relationships. 50. Defendant is aware that her actions violate the aforementioned Employment Agreement. 51. In addition, Defendant is in possession of confidential information and trade secrets owned and developed by Hearing Instruments, and she has used or intends to use, whether consciously or unconsciously, such information to impact Hearing Instruments' ability to perform business and cause current and prospective customers to do business with Liberty instead of with Hearing Instruments. 52. Defendant lacks privilege or justification for such interference. 53. Defendant's actions are willful and malicious, thus subjecting her to exemplary damages. 54. As a result of Defendant's conduct, she has impacted Hearing Instruments' current and prospective business relationships and has caused, and will continue to cause, Hearing Instruments to sustain harm. 55. As a result of the foregoing, Hearing Instruments is entitled to injunctive relief prohibiting Defendant from further solicitation of Hearing Instruments' employees, customers, 10 and prospective customers, and is further entitled to compensatory and punitive damages in an amount yet to be determined and such other legal or equitable relief that this Court deems proper. COUNT V Unfair Competition 56. Hearing Instruments incorporates paragraphs 1 through 55 as though fully set forth herein. 57. By engaging in the aforementioned conduct, Defendant has engaged in unfair competition with Hearing Instruments. 58. The actions of Defendant have been willful, intentional, and unprivileged, and have caused, and are continuing to cause, irreparable harm as well as imminent monetary damages to Hearing Instruments in an amount yet to be determined. PRAYER FOR RELIEF WHEREFORE, Plaintiff Hearing Instruments, Inc. respectfully requests: (1) After a hearing, that a preliminary injunction issue against Defendant Kellie Tankersley from competing with Plaintiff for a period of two (2) years from the termination of her employment with Hearing Instruments; from soliciting or doing business with Hearing Instruments' customers, both current and prospective, and from disclosing Hearing Instruments' trade secrets or confidential information to anyone; (2) A permanent injunction against Defendant from competing with Hearing Instruments (upon the same durational conditions as the preliminary injunction), from soliciting or doing business with Hearing Instruments' customers, both current and prospective, and from disclosing Hearing Instruments' trade secrets or confidential information to anyone; and 11 (3) A judgment in favor of Hearing Instruments and against Defendant for all direct, consequential, compensatory, incidental, liquidated, and special damages arising out of her aforementioned wrongful conduct, in an amount believed to exceed the jurisdictional threshold for compulsory arbitration, including punitive damages, attorney's fees, costs and such other legal or equitable relief that this Court deems proper. RHOADS & SINON LLP odd J. Shill Stephen Moniak One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Plaintiff Hearing Instruments, Inc. 12 VERIFICATION Julia C. Beall -McKelvey, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that she is the President of Hearing Instruments, Inc., that she makes this verification by its authority and that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. Date Julia C. Beall -McKelvey 954708.1 EMPLOYMENT AGREEMENT HEARING INSTRUMENTS, INC. In consideration dirty employment or continued employment by HEARING INSTRUMENTS, INC., a corporation duly organized and existing in the State of Pennsylvania, with a principal business address at 3425 Simpson Ferry Rd Suite 202 Camp Hill, Pennsylvania (referred to as the "Company") and the compensation paid to me by the Company from time to time, Kellie Tnukerslev ("Employee") does hereby represent, warrant and agree as follows: WHEREAS, Company desires to employ the services of Employee as a Sales Consultant for the sale and service of hearing aids and hearing aid accessories; and WHEREAS, Employee desires to be employed by the Company in the capacity of Sales Consultant to sell and service Bearing aids and hearing aid accessories. I agree that during my employment with the Company, I will devote my full business time and efforts to the Company and will not, without the Company's express prior written consent, engage in any employment or business other than for the Company: I acknowledge that this Agreement does not create any obligation on my part to work for the Company, or on the part of the Company to employ me, for any fixed period of time, and my employment is at will and may be terminated at any time with or without cause. The Company is not obligated by this Agreement to continue my employment for any particular period, or under any specific terms or conditions. 2. Company agrees to train Employee in the sale and servicing of hearing aids and accessories. 3. Company agrees to pay Employee a compensation based upon sales nude by Consultant during the term of this Agreement. The rate of compensation will be determined in advance by the Company and provided in writing to Employee, a copy of which is attached hereto as Exhibit "A". Compensation will be paid based on monies received by Company on Employee's sales and accounts less cancellations. Payment shall be made within twenty (20) days of receipt of satisfactory delivery of products paid in full. Employee understands that compensation rates will change from time to time as conditions, prices, expenses, etc, change, determined by Company. 4, I acknowledge and agree that all Confidential Information is the property of the Company and that i have or will have access to knowledge of Confidential Information (hereinafter defined), any part of which may be valuable to the Company, as a consequence of my employment by Me Company, including, but not limited to, information that I have conceived, originated, devised, discovered, invented, or developed, either alone or with others. 5. (a) I acknowledge that, in and as a result of the provision by me of services to the company, I shall or niay be making use of, acquiring, observing, examining and adding to the Company's information of a special and unique nature and value relating to such matters as the Company's trade secrets, systems, concepts, processes, testing processes, techniques, devices, procedures, confidential reports and communications and records and lists of customers and clients and/or prospective customers and clients (hereinafter referred to as "Confidential Information"). As a material inducement to the Company to engage my services (or to continue to so engage my services) and to pay to me compensation for such services to be rendered to the Company by me (it being understood and agreed by me that such compensation shall also be paid and received in consideration hereof), I covenant and agree that I shall not, for any purpose, other than the purposes of the Company, at any time during or following the terms of my provision of services to the Company, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, copy, duplicate, communicate, make available or use to any person or entity, directly or indirectly, for any purpose whatsoever or in any maimer, any such Confidential Information which has been obtained by or disclosed to me as a result of the Company's engagement of my services. (b) I agree 1 may not copy or otherwise duplicate any such Confidential Information in whole or in part, without the prior written approval of the Company, except in connection with and in accordance with the terms hereof. I agree I shall use all reasonable means to safeguard any Confidential Information to which I have access and retain it in a safe and secure place. (c) 1 shall use every reasonable and prudent precaution to ensure that any individual to whom such Confidential Information is or has been disclosed (hi connection with the provision by me of services hereunder and in accordance with the terms hereof) does not disclose to any third parties or otherwise use such Confidential Information except pursuant to the terms of this Agreement during, and subsequent to the termination of the relationship between me and such individual. 6. I agree to abide by all state and federal laws governing the sale and service of hearing aids and to uphold all Company policies. 7. (a) Upon termination of this Agreement Company agrees to pay employee all Base Pay earned to date of termination at'the first company payday following employment termination. One Hundred and twenty days after employment termination, Company agrees to pay employee 25% of the total commission earned on net sales if not already paid. In the event employee leaves employment, any bonus earned will be paid provided that after deductions and other adjustments, employee shall qualify for a bonus. In the event that termination of employment is for cause, including violation of company policy or rules, or any state and federal law governing sale and service of hearing aids, no unpaid commissions or bonus will be paid or shall be considered due to an employee. (b) Employee agrees to report to Company each business day all sales and services performed and all monies collected by employee. Employee also agrees to submit within 48 hours of collection all monies collected from sales and customer accounts, (c) Failure of Employee to submit reports or monies in subparagraph (b) will void the obligations of Company under subparagraph (a). (d) Employee has no authority to deduct commissions from monies received. All monies, checks or drafts received will be delivered to Company, endorsed, if necessary, by Employee to Company. 8, Any Confidential Information to which I have access shall be used by me solely in connection with my employment by the Company. It shall not be used either internally or externally by me for any use outside the purpose and scope of my employment by the Company. I shall not make the Confidential Information available for use by, or for the benefit of, any other party, whether or not for consideration. 9. I agree that I will not take with me any Confidential Information that is in written, machine readable, model, or other form, including sound or video recordings, computer CDs, demo hearing aids, training materials, disks or diskettes, capable of physical delivery, upon or after the termination of my employment with the Company, for any reason whatsoever, without the prior written consent of the Company. 1 also agree that upon termination of my employment with the Company, for any reason whatsoever, to promptly deliver all such materials in my possession or under my control to the Company. l further agree that upon termination of my employment with the Company for any reason whatsoever, I will return to the Company any property of the Company within my possession or control, 2 10. Neither this Agreement, nor any of the rights and obligations under this Agreement of the parties hereto, may be assigned, transferred or otherwise disposed of by me without the Company's written consent. 1 1 . I agree not to engage in any business directly or indirectly competitive with any business of the Company without the Compan'y's prior written consent during the period of my employment with the Company, alone or as a partner officer, agent, joint venture, director or stockholder, or as a consultant, advisor or employee, or otherwise, of any other entity or individual. 12. (a) 1 agree to devote my best efforts to the work assigned to me by the Company. If 1 have any other employment, I will advise the Company at the tune of hire. If there is any substantial change in the degree of time or effort required of such other work, 1 will also advise the company of such change. (b) I will not initiate, continue, or expand such outside employment without the express written permission of the Company. 13. (a) I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by me in confidence prior to my employment by the Company. 1 have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict with this Agreement. (b) I agree to advise the Company of the identity of any successor employer for whom I am scheduled to work, prior to the time I terminate employment with the Company. I further agree to disclose to any future employer the existence of this Agreement and my obligations hereunder. 14. If and wl►en I leave the employ of the Company for any reason whatsoever, I agree not to take any action to assist my successor employer or any other individual or entity in recruiting any other employee who had worked for the Company during any time period when I worked for the Company. 1 expressly understand and acknowledge that the provisions of Sections 5, 14 and 15 hereof shall survive termination of this Agreement, for any reason whatsoever. 15, During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, 1 will not directly or ind'ir'ectly recruit or hire any employee of the Company, or otherwise induce such employee to leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which I am or may become associated, nor swill 1 directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly, for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof. I recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to each and every location of my employment ent with the Company. The initial arca to he served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. 16. (a) If any provision of this Agreement shall be determined to be invalid or otherwise unenforceable by any court of competent jurisdiction, the validity and enforceability of the other provisions of this Agreement shall not be affected thereby and the provision found invalid or otherwise unenforceable may be appropriately amended by that court so as to be valid and enforceable. (b) This Agreement constitutes the entire agreement and understanding between the Company and me concerning the subject matter thereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by a duly authorized officer of the Company. Failure of the Company to insist upon strict compliance +vith any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants and conditions. (c) l acknowledge that money damages alone will not adequately compensate the Company for breach of any of my covenants and agreements herein and, therefore, agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to all other remedies available to the Company, the Company shall be entitled to injunctive relief compelling specific performance of, or other compliance with the terms hereof. 1 agree that in the event of a breach of either Paragraph I I or Paragraph 15 of this Agreement by me, 1 will be liable to Company as liquidated damages in an amount of money equal to the total sum of any sales by me as Employee on my own behalf or on behalf of others contrary to the best interests of Company. In addition, Company will retain as liquidated damages any commissions due and owing by Company to me at the time of the breach of this Agreement by me. I acknowledge that I have previously made my living in other fields and that the restrictive provisions of this Agreement in no way prevent me from earning a living in the event I should breach these provisions. (d) This Agreement shall be binding upon me irrespective of the duration of my employment with the Company or the amount of my salary, wages or commissions. For purposes of this Agreement, the period of my employment shall include any tune during which I am retained as a consultant by the Company. My obligations under this Agreement shall survive the termination of my employment by the Cotnpany irrespective of tine reason for such termination and shall not in any way be modified, altered or otherwise affected by such termination. (e) I understand, acknowledge and agree that any violation by me of any of the terms of this Agreement shall result in my immediate termination. (f) willingly. I warrant and represent that 1 have the legal right to enter into this Agreement and that I do so (g) This Agreement may not be amended or modified, nor may any of the rights or obligations of any party hereto be waived, except by a superseding written agreement signed by myself and by the Company. (h) The captions to the paragraphs of this Agreement are for the convenience of the parties only and shall not affect the application or construction of the provisions of this Agreement. (1) This Agreement shall be construed, interpreted and applied in accordance with the laws of the Commonwealth of Pennsylvania, applying to contracts fully executed and performed in the State of Pennsylvania. (j) This Agreement contains the entire agreement between the parties. Any and all prior and collateral representations, promises and conditions in connection with the subject matter are merged into this Agreement. Ansi representation, promise or condition not incorporated herein shall not be binding upon either party. This Agreement supersedes and is in lieu of all existing agreements or arrangements between the parties. 4 17. Employee agrees to work the minimum office Hours which are 9:00 am to 5:00 pm in free standing Miracle -Ear Centers and from store opening + 8 hours in Sears stores Monday through Friday. In addition, employee is required to be available to work three evenings per week by appointment and two Saturday's per month by appointment. The minimum office/working hours may be amended from time to time by the company with consent from the employee. 18. Employee understands that as a part of (raining, and for future evaluations, the Company wiIl, from time to time, be monitoring sessions with clients or customers. I hereby consent to the use of remote monitoring equipment, including both visual and sound, for such purposes. 19. Receipt of Copy of Agreement. I hereby acknowledge receipt of a duplicate copy of this Agreement. I ACKNOWLEDGE THAT BEFORE SIGNING BELOW I I-TAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND FULLY UNDERSTAND THE SAME. Dated: ACCEPTED AND AGREED FOR: Signature: Hearing Instruments. Inc. (Col parry) WITNESS: Date: / — 2 - / Date: 5 EXHIBIT "A" Compensation for Kellie Tankersley will he as follows: • Week ending 1/4/2013 compensation will be a $500 salary a Week ending 1/11/2013 compensation will be a $500 salary Beginning 1/11/2013 compensation will be a $300/week draw against commissions with 15% commission paid on all product lines. PA State Hearing Aid Fitters Exam: e After employee has successfully passed the PA State Hearing Aid Fitters Exam, the compensation plan will be a $300/week draw against commissions with 17% commission paid on all product lines, e Next scheduled PA State Exam is April 26, 2013, Bonus structure: ® A 3% bonus will be paid on net sales of $130,000 or more sold in a calendar quarter. The bonus will be considered to be earned 60 days after the end of the quarter on all products satisfactorily delivered. • finny quarterly bonus level is not earned but net sales of $500,000 in a calendar year is achieved, the 3% bonus will still be paid. • An additional 2% bonus will be paid on net sales of $700,000 in a calendar year, All sales nude from any office will count toward bonus. Health Insurance Contributions: a After 90 days, employee will receive $200.00 per month as a contribution to their own Health Insurance Plan. Commissions on Batteries/Accessories: • Beginning with the first full month on the draw system, employee will receive 17% commission on all batteries and accessories sold Vacation: • After 1 year of employment, employee will receive 2 weeks vacation and 5 personal days, See Time and attendance procedure document for additional information on requesting time off, 401K Plan: • Employee will qualify, after 6 months, for participation in the company retirement plan. Employee is responsible for contacting the corporate accountant at our corporate office within 6 months of employment to become moiled in the company retirement plan. From time to time the company will promote special events and deeply discounted sales. The commission amount will vary with each situation. Compensation arrangements in the future will change as circumstances change, 6 Svcle Confident Agreement Form of Confidentiality Agreement for employees, agents, representatives, third party suppliers, and all other Individuals or entities who utilize or may have access to Confidential information THIS AGREEMENT is made as of this day, /, 2013 by and between Hearing instruments, Inc. ("Franchisee") and Kellie Tankersley ("Confidant"). RECITALS A. Miracle -Ear, Inc. ("Miracle -Ear") and Franchisee executed that certain franchise agreement dated as of February 28 2004 and that certain sublicense to access and use agreement (Collectively, the "Franchisee Agreements"), B. Franchisee has received and will periodically receive Confidential Information of Miracle -Ear. "Confidential information" includes the whole or any portion of know-how, knowledge, methods, manuals, specifications, processes, procedures and/or improvements regarding the business that is valuable and secret in the sense that it is not generally known to Miracle -Ear competitors and any proprietary information contained in any Miracle -Ear documents that Miracle - Ear provides to Franchisee and in which Miracle -Ear describes the Miracle -Ear® System or any operational policies, manuals, standards, requirements or practices, whether communicated to Franchisee in writing, verbally or through the Internet or other online or computer communications, and any other knowledge or know-how concerning the methods of operation of the Miracle -Ear® centers. C, Pursuant to the Franchisee Agreements, all of Franchisee's employees, agents, representatives, third party suppliers, and all other individuals or entities who utilize or may have access to Confidential Information, may not, at any time, disclose, copy, reproduce, sell or use in any other business or in any manner not specifically authorized or approved in advance in writing by Miracle -Ear any Confidential Information. D. Pursuant to the Franchisee Agreements, Franchisee must obtain Confidentiality Agreements from all of its employees or agents, or any other individual or entity to whom Franchisee has disclosed the Confidential Information, E. Confidant wants to become or currently is an employee of Franchisee and, therefore, it has had and/or will have access to Confidential Information. NOW, THEREFORE, in consideration of foregoing, the payment of $1.00 that at the time of execution of this Agreement Franchisee is paying to Confidant, and the mutual covenants and reliance of the parties, the parties agree as follows: I. Confidant agrees that (a) it will treat as confidential and will not disclose the Confidential Information which may be made or become available to Confidant; (b) it will maintain in a secure place any Confidential Information delivered to it; and (c) it will not use any Confidential Information for any purpose other than in furtherance of its relationship with Franchisee or for any purpose which niay be detrimental to Miracle -Ear or Miracle -Ear's present or potential business or shareholders. 2. Confidant represents and warrants that as of this date, Confidant has never disclosed Confidential Information to any third party, with the exception of third parties with whom Confidant has subcontracted for the performance of some or all of Confidant's obligations to Franchisee ("Confidant's Subcontractors"), Confidant represents and warrants that as of this date, Confidant has required Confidant's Subcontractors to maintain the confidentiality of such Confidential Information consistent with the provisions of Paragraph 1 hereof. 3. Nothing stated herein shall preclude the disclosure of Confidential Information in response to a valid order of a court, governmental agency or other governmental body or any political subdivision thereof or as otherwise required by law, provided, however, that if Confidant is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, Confidant will notify Miracle -Ear and Franchisee promptly so that Miracle -Ear and Franchisee may seek a protective order or other appropriate remedy or, in Miracle -Ear's sole discretion, waive compliance with the terms of this Agreement. Confidant agrees to use reasonable efforts to cooperate with Miracle - Ear and Franchisee in connection with Miracle -Ear's and Franchisee's efforts to prevent disclosure or seek confidential treatment or any other remedy respecting such requested or required disclosure. 4. The parties agree that Miracle -Ear and Franchisee would not have an adequate remedy at law For any breach or nonperformance of the terms of this Agreement by Confidant. In the event of a breach or threatened breach of any of the terms of this Agreement by Confidant, Miracle -Ear and Franchisee will forthwith be entitled to an injunction restraining such breach or to a decree of specific performance, without showing or proving any actual damage and without any 7 obligation to post bond or grant any other type of guaranty, together with recovery of reasonable attorneys' fees and other costs incurred in obtaining said equitable relief, until such lime as a final and binding determination is made. The foregoing equitable remedies are in addition to, and not in lieu of, all other remedies or rights that Miracle -Ear might otherwise have by virtue of any breach of this Agreement by Confidant, including the right to consequential damages. 5, No modification or waiver of any of the provisions hereof, or any representation, promise or addition hereto, or waiver of any breach hereof, will be binding upon.a party unless made in writing and signed by the party to be charged thereby and by Miracle -Ear. No waiver of any particular breach will be deemed to apply to any other breach, whether prior or subsequent to a waiver. This Agreement may not be assigned by Confidant without the express prior written consent of Miracle -Ear. 6. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to this Agreement will be entitled to recover its reasonable attorneys' fees and costs, 7. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to any conflict of laws principles, Any cause of action, claim, suit or demand allegedly arising from or related to the terms of this Agreement must be brought (i) by Confidant, in the Federal District Court for the District of Minnesota or in the State courts located in Hennepin County, Minnesota; (ii) by Miracle -Ear or by Franchisee, in the Federal District Court for the District of Minnesota, in the State cowls located in Hennepin County, Minnesota, or in the competent courts located in the State where Confidant has its domicile at the time the action is brought. The parties irrevocably submit themselves to, and consent to, the exclusive jurisdiction of said courts. All parties hereby waive any and all rights to a trial by jury in connection with the enforcement or interpretation by judicial process of any provision of this Agreement, or any legal action initiated for the recovery of damages for breach of this Agreement. 8. Franchisee and Confidant expressly agree that Miracle -Ear is a third party beneficiary of this Agreement and as such Miracle -Ear shall have the right to enforce any and all remedies available upon the violation of any of the provisions under this Agreement. In addition, Miracle -Ear may require Franchisee to bring any action that Miracle -Ear considers appropriate in the event of any breach by Confidant hereunder, In the event that Miracle -Ear or Franchisee make a claim that Confidant has violated Confidant's obligations under this Agreement, Confidant will have the burden of proving that such violation did not occur. 9. Confidant confirms they understand and will comply with all State and Federal legislation relating to the care and handling of electronic records, and furthermore understands that failure to comply with such legislation may result in civil and or criminal actions, Confidant also affirms their future compliance with such regulations including that they shall; 1) access the system only from Miracle -Ear offices, and no other location unless franchisee provides specific written authorization of an additional location for access; 2) use only the unique Username assigned to confidant when accessing the system, and shall protect their Username, and shall notify franchisee ifcoufdant suspects any breach of their logon credentials; 3) shall enter true and accurate information into the system, and understand that entry of such information constitutes their affirmation of such information by means of a legal electronic signature. IN WiTNESS WHEREOF, the parties have caused this Agreement to be executed in the manner appropriate to each. FRANCI-IISEE CONFIDANT Hearing instruments, Inc. By: Julia C. McKelvey Its: President and CEO (Employee Si nature By: (Print Name) 8 EXHIBIT B RHOADS & SINON LLP Todd J. Shill ph (717) 231-6665 5: (717) 260-4365 tshill@rhoads-sinori.com Kellie Tankersley 26 Fifth Street Pittsburgh, PA 15215 Dear Ms. Tankersley: Reply to Harrisburg Office FILE NO: 5290/37 March 19. 2014 Re: Hearing Instruments, Inc. VIA OVERNIGHT DELIVERY We are writing on behalf of our client, Hearing Instruments, Inc. ("Hearing Instruments "). As you know, you are bound by the terms of your Employment Agreement ("Agreement") with Hearing Instruments, a copy of which is enclosed for your reference. Pursuant to the terms of this Agreement, you agreed to the following restrictive covenants: During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which I am or may become associated, nor will I directly or indirectly •solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof I recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to One South Market Square, 12th Floor • P.O. Box 1146 • Harrisburg, PA 17108-1146 • ph: 717.233.5731 29 Dowtin Forge Road • Exton, PA 19341 • ph: 610.423.4200 • fax: 610.423.4201 www. rhoads-sinon. corn March 19, 2014 Page 2 each and every location of 777y employment with the Company. The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. (Employment Agreement, ¶ 15. (emphasis added).) Pursuant to the terms of this Agreement, you further agreed not to, "for any purpose, other than the purposes of the Company, at any time during or following the teims of [your] provision of services to the Company, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, copy, duplicate, communicate, make available or use to any person or entity, directly or indirectly, for any purpose whatsoever or in any manner, any such Confidential Information which has been obtained by or disclosed to [you] as a result of the Company's engagement of services." (Id. ¶ 5(a).) Additionally, you specifically agreed not to "take with [you] any Confidential Information that is in written, machine readable, model, or other form, including sound or video recordings, computer CDs, demo hearing_ aids, training materials, disks or diskettes, capable of physical delivery, upon or after the termination of [your] employment with the Company, for any reason whatsoever, without the prior written consent of the Company" and that, upon termination of your employment, "to promptly deliver [to the Company] all such materials [and any property of the Company] in [your] possession or under [your] control." (Id. 119.) It recently has come to Hearing Instruments' attention that you are now working for a competitor, Liberty Hearing Aids ("Liberty"), at its 289 Mount Nebo Pointe Road location in Pittsburgh, Pennsylvania. This is in direct violation of the foregoing covenants, as the Liberty location at which you currently work is located within twenty (20) miles of at least one of the areas you serviced while employed by Hearing Instruments. Further, Hearing Instruments also is aware that, upon your termination with Hearing Instruments and without permission or authority to do so, you took Company property and Confidential Information, as defined in the Agreement, including, but not limited to, training manuals, sales presentations and pricing information. Your misappropriation of such materials, as well as any use or disclosure of the same, inter alia, directly violates the terms of the Agreement. By this letter, Hearing Instruments hereby demands that you immediately cease and desist from any further violation of your Agreement. In addition, because you may not have informed Liberty that you are subject to the enclosed restrictive covenants, and because your violation of these covenants may subject your employer to liability, we also are mailing a copy of this letter to Liberty's offices, at both its Mount Nebo Pointe Road location as well as its home office in Grand Prairie, Texas. By this letter, we also demand that you immediately return all Company property and Confidential Information (and any copies you may have made of the same) that you unlawfully took from Hearing Instruments. Please respond within seven (7) days from the date of this letter and confiiiii that, going forward, you will honor the terms of your Agreement with Hearing Instruments. All correspondence should be addressed to this office directly, and not to Hearing Instruments. If we do not hear from you, we will assume that you have chosen not to honor this request. Should that March 19, 2014 Page 3 occur, Hearing Instruments may be forced to seek judicial intervention and obtain injunctive relief in addition to any other remedies available to it. Per the terms of your Agreement, these remedies include, but are not limited to, liquidated damages in an amount equal to the total sum of any sales made by you as an employee of Liberty. We trust that you will not make this necessary. Very truly yours, RHOADS & SrNON LLP By: Enclosure cc: Julia C. Beall -McKelvey (w/o encl.) Liberty Hearing Aids (w/encl.) EMPLOYMENT AGREEMENT FTEARLNG INSTRUMENTS, INC, In consideration of my employment or continued employment by HEARING INSTRUMENTS, INC., a corporation duly organized and existing in the State of Pennsylvania, with a principal business address at 3425 Simpson Ferry Rd Suite 202 Camp Hill, Pennsylvania (referred to as the "Company") and the compensation paid to me by the Company from time to time, Kellie Taukerslev ("Employee") does hereby represent, warrant and agree as follows: WHEREAS, Company desires to employ the services of Employee as a Sales Consultantfor the sale and service of hearing aids and hearing aid accessories; and WHEREAS, Employee desires to be employed by the Company in the capacity of Sales Consultant to sell and service hearing aids and hearing aid accessories. I agree that during my employment with the Company, I will devote my full business time and efforts to the Company and will not, without the Company's express prior written consent, engage in any employment or business other than for the Company: I acknowledge that this Agreement does not create any obligation on my part to work for the Company, or on the part of the Company to employ me, for any fixed period of time, and my employment is at will and may be terminated at any time with or without cause. The Company is not obligated by this Agreement to continue my employment for any particular period, or under any specific terms or conditions, 2, Company agrees to train Employee in the sale and servicing of hearing aids and accessories, 3. Company agrees to pay Employee a compensation based upon sales made by Consultant during the term of this Agreement, The rate of compensation will be determined in advance by the Company and provided in writing to Employee, a copy of which is attached hereto as Exhibit "A". Compensation will be paid based on monies received by Company on Employee's sales and accounts less cancellations, Payment shall he made within twenty (20) days of receipt of satisfactory delivery of products paid in full. Employee understands that compensation rates will change from time to time as conditions, prices, expenses, etc. change, determined by Company. 4, 1 acknowledge and agree that all Confidential Information is the property of the Company and that I have or will have access to knowledge of Confidential Information (hereinafter defined), any part of which may be valuable to the Company, as a consequence of my employment by the Company, including, but not limited to, information that I have conceived, originated, devised, discovered, invented; or developed, either alone or with others. 5, (a) I acknowledge that, in and as a result of the provision by me of services to the company, I shall or may be making use of, acquiring, observing, examining and adding to the Company's information of a special and unique nature and value relating to such matters as the Company's trade secrets, systems, concepts, processes, testing processes, techniques, devices, procedures, confidential reports and communications and records and lists of customers and clients and/or prospective customers and clients (hereinafter referred to as "Confidential Information"). As a material inducement to the Company to engage my services (or to continue to so engage my services) and to pay to me compensation for such services to be rendered to the Company by me (it being understood and agreed by me that such compensation shall also be paid and received in consideration hereof), I covenant and agree that I shall not, for any purpose, other than the purposes of the Company, at any time during or following the terms of my provision of services to the Company, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, copy, duplicate, cotnmunicate, make available or use to any person or entity, directly or indirectly, for any purpose whatsoever or in any mamier, any such Confidential Information which has been obtained by or disclosed to ine as a result of the Company's engagement of my services. (b) 1 agree 1 may not copy or otherwise duplicate any such Confidential Information in whole or in part, without the prior written approval of the Company, except in connection with and in accordance with the terms hereof I agree i shall use all reasonable means to safeguard any Confidential Information to which I have access and retain it in a safe and secure place. (c) 1 shall use every reasonable and prudent precaution to ensure that any individual to whom such Confidential Information is or has been disclosed (in connection with the provision by me of services hereunder and in accordance with the terms hereof) does not disclose to any third parties or otherwise use such Confidential Information except pursuant to the terms of this Agreement during, and subsequent to the termination of the relationship between me and such individual. 6. 1 agree to abide by all state and federal laws governing the sale and service of hearing aids and to uphold all Company policies. 7. (a) Upon termination of this Agreement Company agrees to pay employee all Base Pay earned to date of termination at'the first company payday following employment termination. One Hundred and twenty days after employment termination, Company agrees to pay employee 25% of the total commission earned on net sales if not already paid. In the event employee leaves employment, any bonus earned will be paid provided that after deductions and other adjustments, employee shall qualify for a bonus. In the event that termination of employment is for cause, including violation of company policy or rules, or any state and federal law governing sale and service of hearing aids, no unpaid commissions or bonus will be paid or shall be considered clue to an employee. (b) Employee agrees to report to Company each business day all sales and services performed and all monies collected by employee. Employee also agrees to submit within 48 hours of collection all monies collected from sales and customer accounts, (c) Failure of Employee to submit reports or monies in subparagraph (b) will void the obligations of Company under subparagraph (a). (d) Employee has no authority to deduct commissions from monies received, All monies, checks or drafts received will be delivered to Company, endorsed, if necessary, by Employee to Company. 8. Any Confidential lnforniation to which I have access shall be used by me solely in connection with my employment by the Company. It shall not be used either internally or externally by me for any use outside the purpose and scope of my employment by the Company. I shall not snake the Confidential Information available for use by, or for the benefit of, any other party, whether or not for consideration. 9. I agree that I will not take with rue any Confidential Information that is in written, machine readable, model, or other form, including sound or video recordings, computer CDs, demo hearing aids, training materials, disks or diskettes, capable of physical delivery, upon or after the termination of my employment with the Company, for any reason whatsoever, without the prior written consent of the Company. I also agree that upon termination of my employment with the Company, for any reason whatsoever, to promptly deliver all such materials in my possession or under my control to the Company, I further agree that upon termination of my employment with the Company for any reason whatsoever, I will return to the Company any property of the Company within my possession or control. 2 10. Neither this Agreement, nor any of the rights and obligations under this Agreement of the parties hereto, may be assigned, transferred or otherwise disposed of by me without the Company's written consent, 11. I agree not to engage in any business directly or indirectly competitive with any business of the Company without the Company's prior written consent during the period of my employment with the Company, alone or as a partner officer, agent, joint venture, director or stockholder, or as a consultant, advisor or employee, or otherwise, of any other entity or individual. 12. (a) 1 agree to devote my best efforts to the work assigned to me by the Company. If i have any other employment, I will advise the Company at the time of hire. If there is any substantial change in the degree of time or effort required of such other work, I will also advise the company of such change. (b) I will not initiate, continue, or expand such outside employtnent without the express written permission of the Company. 13. (a) I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by me in confidence prior to my employment by the Company, I have not entered into, and 1 agree 1 will not enter into, any agreement either written or oral in conflict with this Agreement. (b) 1 agree to advise the Company of the identity of any successor employer for whom I am scheduled to work, prior to the time I terminate employment with the Company. I further agree to disclose to any future employer the existence of this Agreement and my obligations hereunder, 14. If and when 1 leave the employ of the Company for any reason whatsoever, I agree not to take any action to assist my successor employer or any other individual or entity in recruiting any other employee who had worked for the Company during any time period when I worked for the Company. 1 expressly understand and acknowledge that the provisions of Sections 5, 14 and 15 hereof shall survive termination of this Agreement, for any reason whatsoever, 15. During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which i am or may become associated, nor will 1 directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly, for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof, l recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to each and every location of niy employment with the Company. The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. 16. (a) if any provision of this Agreement shall be determined to be invalid or otherwise unenforceable • by any court of competent jurisdiction, the validity and enforceability of the other provisions of this Agreement shall not be affected thereby and the provision found invalid or otherwise unenforceable may be appropriately amended by that court so as to be valid and enforceable. (b) This Agreement constitutes the entire agreement and understanding between the Company and nie concerning the subject matter thereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by a duly authorized officer of the Company. Failure of the Company to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants and conditions. (o) 1 acknowledge that money damages alone will not adequately compensate the Company for breach of any of my covenants and agreements herein and, therefore, agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to all other remedies available to the Company, the Company shall be entitled to injunctive relief compelling specific performance of, or other compliance with the terms hereof, I agree that in the event of a breach of either Paragraph 1 1 or Paragraph 15 of this Agreement by me, 1 will be liable to Company as liquidated damages in an amount of money equal to the total sum of any sales by me as Employee on my own behalf or on behalf of others contrary to the best interests of Company. In addition, Company will retain as liquidated damages any commissions due and owing by Company to me at the time of the breach of this Agreement by me. I acknowledge that I have previously made my living in other fields and that the restrictive provisions of this Agreement in no way prevent me from earning a living in the event I should breach these provisions. (d) This Agreement shall be binding upon me irrespective of the duration of my employment with the Company or the amount of my salary, wages or commissions, For purposes of this Agreement, the period of my employment shall include any time during which I am retained as a consultant by the Company. My obligations under this Agreement shall survive the termination of my employment by the Company irrespective of the reason for such termination and shall not in any way be modified, altered or otherwise affected by such termination. (e) 1 understand, acknowledge and agree that any violation by me of any of the terms of this Agreement shall result in my immediate termination. (f) willingly. I warrant and represent that 1 have the legal right to enter into this Agreement and that I do so (g) This Agreement may not be amended or modified, nor may any of the rights or obligations of any party hereto be waived, except by a superseding written agreement signed by myself and by the Company. (h) The captions to the paragraphs of this Agreement are for the convenience of the parties only and shall not affect the application or construction of the provisions of this Agreement. (i) This Agreement shall be construed, interpreted and applied in accordance with the laws of the Commonwealth of Pennsylvania, applying to contracts fully executed and performed in the State of Pennsylvania. (j) This Agreement contains the entire agreement between the parties. Any and all prior and collateral representations, promises and conditions in connection with the subject matter are merged into this Agreement, Any representation, promise or condition not incorporated herein shall not be binding upon either party. This Agreement supersedes and is in lieu of all existing agreements or arrangements between the parties. 4 17. Employee agrees to work the minimum office hours which are 9:00 am to 5:00 pm in free standing Miracle -Ear Centers and from store opening + 8 hours in Sears stores Monday through Friday. In addition, employee is required to be available to work three evenings per week by appointment and two Saturday's per month by appointment. The minimum office/working hours may be amended from tulle to time by the company with consent from the employee. 18. Employee understands that as a part of training, and for future evaluations, the Company will, frons time to time, be monitoring sessions with clients or customers, 1 hereby consent to the use of remote monitoring equipment, including both visual and sound, for such purposes. [9, Receipt of Copy of Agreement. I hereby acknowledge receipt of a duplicate copy of this Agreement, I ACKNOWLEDGE THAT BEFORE SIGNING BELOW I I -(AVE READ ALL OF THE PROVISIONS OF THIS AGREEIMIENT AND FULLY UNDERSTAND THE SAME. Dated: ACCEPTED AND AGREED FOR: Hearing Instruments, Inc. Signature: Date: WITNESS: �66_(710(.#—/-4 Date: EXHIBIT "A" Comrrensatiou for Kellie Tankersley will be as follows: • Weekending 1/4/2013 compensation will be a $500 salary • Week ending 1/11/2013 compensation will be a $500 salary Beginning 1/! 1/2013 compensation will be a $300/week draw against commissions with 15% commission paid on all product lines. PA State Hearing Aid Fitters Exam: • After employee has successfully passed the PA State Hearing Aid Fitters Exam, the compensation plan will be a $300/week draw against commissions with 17% commission paid on all product lines, 9 Next scheduled PA State Exam is April 26, 2013, Bonus structure: • A 3% bonus will be paid on net sales of $130,000 or more sold in a calendar quarter. The bonus will be considered to be earned 60 days after the end of the quarter on all products satisfactorily delivered. • Ilan), quarterly bonus level is not earned but net sales of $500,000 in a calendar year is achieved, the 3% bonus will still be paid. • An additional 2% bonus will be paid on net sales of $700,000 in a calendar year. • All sales made from any office will count toward bonus, Health Insurance Contributions: • After 90 days, employee will receive $200.00 per month as a contribution to their own Health Insurance Plan. Commissions on Batteries/Accessories: • Beginning with the first full month on the draw system, employee will receive 17% commission on all batteries and accessories sold Vacation: • After 1 year of employment, employee will receive 2 weeks vacation and 5 personal days. See Time and attendance procedure document for additional information on requesting time off. 401K Plan: • Employee will qualify, after 6 months, for participation in the company retirement plan. Employee is responsible for contacting the corporate accountant at our corporate office within 6 months of employment to become enrolled in the company retirement plan. From time to time the company will promote special events and deeply discounted sales. The commission amount will vary with each situation. Compensation arrangements in the future will change as circumstances change, 6 Svcle Confident Agr'eernent Form of Confidentiality Agreement for employees, agents, representatives, third party suppliers, and all other Individuals or entities who utilize or may have access to Confidential Information THIS AGREEMENT is made as of this day, /— A , 2013 by and between Hearing Instruments, Inc. ("Frauchisee") and Kellie Tankersley ("Confidant"). RECITALS A. Miracle -Ear, Inc. ("Miracle -Ear") and Franchisee executed that certain franchise agreement dated as of February 28 2004 and that certain sublicense to access and use agreement (Collectively, the "Franchisee Agreements"). B. Franchisee has received and will periodically receive Confidential Information of Miracle -Ear. "Confidential Information" includes the whole or any portion of know-how, knowledge, methods, manuals, specifications, processes, procedures and/or improvements regarding the business that is valuable and secret in the sense that it is not generally known to Miracle -Ear competitors and any proprietary information contained in any Miracle -Ear documents that Miracle - Ear provides to Franchisee and in which Miracle -Ear describes the Miracle -Ear® System or any operational policies, manuals, standards, requirements or practices, whether communicated to Franchisee in writing, verbally or through the Internet or other online or computer communications, and any other knowledge or know-how concerning the methods of operation of the Miracle -Ear® centers. C. Pursuant to the Franchisee Agreements, all of Franchisee's employees, agents, representatives, third party suppliers, and all other individuals or entities who utilize or may have access to Confidential Information, may not, at any time, disclose, copy, reproduce, sell or use in any other business or in any manner not specifically authorized or approved in advance in writing by Miracle -Ear any Confidential Information. D. Pursuant to the Franchisee Agreements, Franchisee must obtain Confidentiality Agreements from all of its employees or agents, or any other individual or entity to whom Franchisee has disclosed the Confidential Information, E. Confidant wants to become or currently is an employee of Franchisee and, therefore, it has had and/or will have access to Confidential Information. NOW, THEREFORE, in consideration of foregoing, the payment of $ 1.00 that at the time of execution of this Agreement Franchisee is paying to Confidant, and the mutual covenants and reliance of the parties, the parties agree as follows; t. Confidant agrees that (a) it will treat as confidential and will not disclose the Confidential Information which may be made or become available to Confidant; (b) it will maintain in a secure place any Confidential Information delivered to it; and (c) it will not use any Confidential Information for any purpose other than in furtherance of its relationship with Franchisee or for any purpose which may be detrimental to Miracle -Ear or Miracle -Ear's present or potential business or shareholders. 2, Confidant represents and warrants that as of this date, Confidant has never disclosed Confidential Information to any third party, with the exception of third parties with whom Confidant has subcontracted for the performance of some or all of Confidant's obligations to Franchisee ("Confidant's Subcontractors"). Confidant represents and warrants that as of this date, Confidant has required Confidant's Subcontractors to maintain the confidentiality of such Confidential Information consistent with the provisions of Paragraph I hereof. 3. Nothing stated herein shall preclude the disclosure of Confidential lnforniation in response to a valid order of a court, governmental agency or other governrnental body or any political subdivision thereof or as otherwise required by law, provided, however, that if Confidant is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, Confidant will notify Miracle -Ear and Franchisee prornptly so that Miracle -Ear and Franchisee may seek a protective order or other appropriate remedy or, in Miracle -Ear's sole discretion, waive compliance with the terms of this Agreement. Confidant agrees to use reasonable efforts to cooperate with Miracle - Ear and Franchisee in connection with Miracle -Ear's and Franchisee's efforts to prevent disclosure or seek confidential treatment or any other remedy respecting such requested or required disclosure. 4. The parties agree that Miracle -Ear and Franchisee would not have an adequate remedy at law for any breach or nonperformance of the terms of this Agreement by Confidant. in the event of a breach or threatened breach of any of the terms of this Agreement by Confidant, Miracle -Ear and Franchisee will forthwith be entitled to an injunction restraining such breach or to a decree of specific performance, without showing or proving any actual damage and without any 7 obligation to post bond or grant any other type of guaranty, together with recovery of reasonable attorneys' fees and other costs incurred in obtaining said equitable relief, until such time as a final and binding determination is made. The foregoing equitable remedies are in addition to, and not in lieu of, all other remedies or rights that Miracle -Ear might otherwise have by virtue of any breach of this Agreement by Confidant, including the right to consequential damages. 5. No modification or waiver of any of the provisions hereof, or any representation, promise or addition hereto, or waiver of any breach hereof, will be binding upon a party unless made in writing and signed by the party to be charged thereby and by Miracle -Ear, No waiver of any particular breach will be deemed to apply to any other breach, \vhether prior or subsequent to a waiver. This Agreement niay not be assigned by Confidant without the express prior written consent of Miracle -Ear. 6. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to this Agreement will be entitled to recover its reasonable attorneys' fees and costs. 7. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to any conflict of laws principles. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of this Agreement must be brought (i) by Confidant, in the Federal District Court for the District of Minnesota or in the State courts located in Hennepin County, Minnesota; (ii) by Miracle -Ear or by Franchisee, in the Federal District Court for the District of Minnesota, in the State courts located in Hennepin County, Minnesota, or in the competent courts located in the State where Confidant has its domicile at the time the action is brought, The parties irrevocably submit themselves to, and consent to, the exclusive jurisdiction of said courts, All parties hereby waive any and all rights to a trial by jury in connection with the enforcement or interpretation by judicial process of any provision of this Agreement, or any legal action initiated for the recovery of damages for breach of this Agreement. 8. Franchisee and Confidant expressly agree that Miracle -Ear is a third party beneficiary of this Agreement and as such Miracle -Ear shall have the right to enforce any and all remedies available upon the violation of any of the provisions under this Agreement. In addition, Miracle -Ear may require Franchisee to bring any action that Miracle -Ear considers appropriate in the event of any breach by Confidant hereunder, in the event that Miracle -Ear or Franchisee make a claim that Confidant has violated Confidant's obligations under this Agreement, Confidant will have the burden of proving that such violation did not occur, 9. Confidant confirms they understand and will comply with all State and Federal legislation relating to the care and handling of electronic records, and finrthermore understands that failure to comply with such Legislation may result in civil and or criminal actions, Confidant also affirms their future compliance with such regulations including that they shall; I) access the system only from Miracle -Ear offices, and no other location unless franchisee provides specific written authorization of an additional location for access; 2) use only the unique Username assigned to confidant when accessing the system, and shall protect their Username, and shall notify franchisee if confidant suspects any breach of their logon credentials; 3) shall enter true and accurate information into the system, and understand that entry of such information constitutes their affirmation of such information by means of a legal electronic signature. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in the manner appropriate to each, FRANCHISE Hearing Instruments, Inc, By: Julia C. McKelvey Its: President and CEO CONFIDANT 8 EXHIBIT C 4123253348 11:18:27 a.m. 03-28-2014 2 /3 SAMUEL J. COR DES & ASSOCIATES Attorneys at Law 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 (412) 281-799: (412) 325-3348 (Telefax) www.cordesemploymentlaw.com CHRISTINE T. ELLER CE LZERtn^COR OESLA W FI RM I. CO\ I VIA FACSIMILE Todd J. Schill Rhoads & Sinon LLP One South Market Square, 12"' Floor P.O. Box 1146 Harrisburg, PA 17108 i March 28, 2014 Re: Kellie Tankersleyllearing Instruments, Inc. Dear Mr. Schill: I have been retained by Kellie Tankersley in connection with the matters raised in your letter to her dated March 19, 2014. I am writing in response to that letter. At the outset, Ms. Tankersley has not violated the non -competition portion of her Employment Agreement because her work location is more than 20 miles away. The Agreement precludes Ms. Tankersley from working in a substantially similar business within the area served by her, or within 20 miles thereof. The Agreement further provides: "The initial area to be served by Employee is Greensburg, Pennsvlvania and may be amended from time to time by instruction of the Company." The Company never amended this provision. As you note, Ms. Tankersley currently works for Liberty Hearing Aids at 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237. This location is more than 40 miles from Greensburg. As such, she has not breached the Agreement. Additionally, Ms. Tankersley has not'retained any property from Hearing Instruments, Inc., and specifically does not have any training manuals, sales presentations, or pricing information. Not only did you accuse Ms. Tankersley of unfounded violations of the Agreement, you also forwarded your letter to her current employer at both Ms. Tankersley's work location and the employer's home office. In so doing, you have given the employer the false impression that Ms. Tankersley breached a restrictive covenant and stole things from former employer, and also threatened the employer with "liability." Your decision to send this letter to the employer without 4123253348 11:18:51 a.m. 03-28-2014 3 /3 SAMUEL J. CORDES & ASSOCIATES Todd J. Schill March 28, 2014 Page Two a full investigation of the facts could subject you and your client to liability for tortious interference with contractual relations. As such, Ms. Tankersley demands that you send another letter to her employer retracting the accusations set forth in the March 19, 2014 letter. Finally, Ms. Tankersley has not received her last paycheck from Hearing Instruments, Inc., and also did not receive her 2013 W-2. Please direct your client to provide these items to Ms. Tankersley by April 11, 2014. Thank you for your attention to this matter. If you have any questions, please contact me. CTE:mdd Very truly y urs, LLOVi/t.,-b? Christine T. Elzer CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2014, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Kellie Tankersley c/o Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 Teresa H. Laughead /,, CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2014, a true and correct copy of the foregoing Motion for Preliminary Injunction was served by means of United States mail, first class, postage prepaid, upon the following: Kellie Tankersley c/o Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 d� G Teresa H. Laughead Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant r L P ;OTH0?i0 TAi 1yJUN 11 PM 2: 58 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO.2014--1871 PLAINTIFF'S MOTION FOR EXPEDITED DISCOVERY NOW COMES Plaintiff Hearing Instruments, Inc., by its attorneys, Rhoads & Sinon LLP, and files the within Motion for Expedited Discovery as follows: 1. Plaintiff Hearing Instruments, Inc. (hereinafter "Hearing Instruments") filed a verified Complaint and Motion for Preliminary Injunction to enjoin Defendant Kellie Tankersley from engaging in competitive activity with Hearing Instruments for a period of two (2) years and within a twenty (20) mile radius of each Hearing Instruments location where she worked following the termination of her employment. Hearing Instruments also seeks an injunction against Defendant from disclosing Hearing Instruments' trade secrets and confidential information in breach of her Employment Agreement with Hearing Instruments. 955445.1 2. In order to prepare for the Preliminary Injunction hearing in this case, it is necessary that certain discovery, by way of depositions and production of documents, be scheduled and completed before the date of such hearing, including the deposition of Defendant. 3. It may also become necessary to serve third-party subpoenas duces tecum on other individuals or entities in order to obtain testimony and documents which are critical to the proper preparation of Hearing Instruments' case, but which are outside of Hearing Instruments' control. 4. To complete this discovery prior to the Preliminary Injunction hearing, the time periods for producing documents and taking depositions provided for in the Pennsylvania Rules of Civil Procedure must be shortened and expedited. 5. The information sought by Hearing Instruments is reasonable in scope, is in the exclusive possession of Defendant and third parties, and cannot be ascertained without discovery. 6. The imminence and severity of irreparable harm to Hearing Instruments and the interests of justice require that the time period for depositions and document production be expedited by this Court. 2 { WHEREFORE, Hearing Instruments respectfully requests an Order permitting it to issue Subpoenas Duces Tecum and Notices of Deposition to Defendant and other individuals and entities as may be necessary to complete discovery prior to the Preliminary Injunction hearing. Respectfully Submitted, RHOADS & SINON LLP Date: June 17, 2014 d J. Shil Stephen Moniak One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Plaintiff, Hearing Instruments, Inc. 3 CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2014, a true and correct copy of the foregoing Motion for Expedited Discovery and proposed Order was served by means of United States mail, first class, postage prepaid, upon the following: Kellie Tankersley c/o Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 Teresa H. Laughead Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. v1 JUS, 17 PM 2 5 CUMBERLAND COUNTY PENNSYLVANIA HEARING INSTRUMENTS, INC., ) IN THE COURT OF COMMON PLEAS ) CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. LAW AND EQUITY KELLIE TANKERSLEY, NO. 2014--1871 Defendant ) PRAECIPE FOR ENTRY OF APPEARANCE To: David Buell, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Kindly enter the appearance of Stephen Moniak, Esquire as co -counsel on behalf of Plaintiff, Hearing Instruments, Inc. in the above -captioned matter. Respectfully Submitted, RHOADS & S LLP Date: June 17, 2014 955465.1 By: odd J. Shill Stephen Moniak One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Plaintiff, Hearing Instruments, Inc. ti CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2014, a true and correct copy of the foregoing Praecipe for Entry of Appearance ase served by means of United States mail, first class, postage prepaid, upon the following: Kellie Tankersley c/o Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 Yazipridez Teresa H. Laughead Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant rnq i.;.. �'.. 17 PM 2: F.j C{N3 i FL„f=i,1�+1 ly im IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO. 2014--1871 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff, Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., ) ) Plaintiff ) ) v. ) KELLIE TANKERSLEY, ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO. 2014--1871 Defendant ) COMPLAINT Plaintiff Hearing Instruments, Inc. ("Hearing Instruments"), by and through its counsel, Rhoads & Sinon LLP, brings this action in law and equity against Defendant Kellie Tankersley (hereinafter "Defendant" or "Tankersley"). INTRODUCTION Hearing Instruments brings this action to stop the wrongful conduct of the Defendant who is currently employed by Hearing Lab Technology, LLC or Liberty Hearing Aids (collectively "Liberty"), a direct competitor of Hearing Instruments' hearing aid and hearing aid accessory business. Tankersley is a former employee of Hearing Instruments, and she is subject to restrictive covenants contained in her Employment Agreement with Hearing Instruments. Upon information and, belief, Tankersley has breached her Employment Agreement by competing with Hearing Instruments within the proscribed geographic area, soliciting Hearing Instruments' customers and/or employees, and disclosing Hearing Instruments' confidential and proprietary information. PARTIES 1. Hearing Instruments is a Pennsylvania corporation with a principal place of business at 3425 Simpson Ferry Road, Suite 202, Camp Hill, Cumberland County, Pennsylvania. Hearing Instruments is a franchisee of Miracle -Ear, a manufacturer and distributor of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle -Ear locations across the Commonwealth of Pennsylvania. 2. Defendant is an adult individual who until late March, 2014, resided at 26 Fifth Street, Pittsburgh, Pennsylvania. Defendant may be served at her place of business located at 289 Mount Nebo Pointe Road, Pittsburgh, Pennsylvania 15237. 3. Tankersley is a former employee of Hearing Instruments, and upon information and belief, is a current employee of Liberty. JURISDICTION AND VENUE 4. This action arises under the laws of this Commonwealth and is within the subject matter jurisdiction of this court. 5. This Court has personal jurisdiction over Defendant pursuant to 42 Pa. C.S. §§5301(a)(1). 6. Venue in this Court is proper pursuant to Pa. R.C.P. 1006(a)(1) because Defendant accepted and signed her Employment Agreement with Hearing Instruments at its headquarters in Cumberland County. 2 FACTUAL BACKGROUND 7. Tankersley initially worked for Hearing Instruments from February 14, 2011 through February 24, 2012, and more recently was employed by Hearing Instruments from January 2, 2013 until she left the company on or about March 22, 2013. 8. In connection with and in consideration of her most recent employmerit with Hearing Instruments, Tankersley signed an Employment Agreement that contained certain employment restrictive covenants. A true and correct copy of Tankersley's Employment Agreement with Hearing Instruments is attached hereto as Exhibit A. 9. Tankersley signed the Employment Agreement at Hearing Instruments' corporate headquarters in Camp Hill, Cumberland County, PA and also completed all corporate training at Hearing Instruments' Camp Hill location. 10. As part of the Employment Agreement, Tankersley acknowledged that she would have access to Hearing Instruments' confidential and proprietary information, including, inter alia, its customer lists, and agreed that she would not, at any time, use or otherwise disclose such information for any purpose other than for the purpose and benefit of Hearing Instruments. (See Employment Agreement (Ex. A), ¶115,8; see also Sycle Confident Agreement (Ex. A) ¶1.) 11. It was clear that this confidential and proprietary information was only to be used within the scope of her employment with Hearing Instruments. (See Employment Agreement (Ex. A) ¶8.) 12. Moreover, the Employment Agreement signed by Tankersley contains the following restrictive covenant: During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to 3 leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which I am or may become associated, nor will I directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof. I recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to each and every location of my employment with the Company. The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. (Employment Agreement (Ex. A), ¶15. (emphasis added).) 13. Although the initial location specified in her Employment Agreement is Greensburg, Pennsylvania, the restrictive covenant in Section 15 of Tankersley's Employment Agreement clearly applies to "each and every location of [her] employment with the Company," and is not limited to the Greensburg location. (Employment Agreement (Ex. A), ¶15.) 14. During her most recent employment with Hearing Instruments, Tankersley was assigned to and worked at the following locations: Greensburg, Pennsylvania and Aliquippa, Pennsylvania. 15. Tankersley's last day of employment with Hearing Instruments was on or about March 21, 2013. 4 16. At some point thereafter, upon information and belief, Tankersley became employed by Liberty, one of Hearing Instruments' competitors, in violation of her Employment Agreement. 17. Specifically, upon information and belief, Tankersley is currently employed at the Liberty location at 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237 in violation of her Employment Agreement, as this location is within the twenty (20) mile radius of the Aliquippa location served by Tankersley during her time with Hearing Instruments. 18. Further, Hearing Instruments also is aware that, upon Tankersley's termination with Hearing Instruments and without permission or authority to do so, she took Company property and Confidential Information, as defined in the Agreement, including, but not limited to, training and technical manuals, sales manuals and presentations and pricing information. 19. During the course of her employment with Hearing Instruments, Tankersley became familiar with confidential and proprietary information concerning, inter alia, sales methods and techniques, marketing and sales information and data, equipment costs and expenses and customer lists for both current and prospective customers. 20. Indeed, Hearing Instruments invested substantial time, money and resources in training and educating Tankersley with regard to its unique sales methods and techniques. 21. It is believed, and therefore averred that Tankersley is now making use of such confidential and proprietary information to further the business interests of Liberty in clear violation of the terms of her Employment Agreement with Hearing Instruments. 22. Accordingly, by letter dated March 19, 2014, the undersigned counsel sent a cease and desist letter to Tankersley, with a copy to Liberty, seeking confirmation that she would 5 honor the terms of her Employment Agreement with Hearing Instruments. A true and correct copy of this letter is attached hereto as Exhibit B. 23. Tankersley, through counsel, responded by way of letter dated March 28, 2014. In this letter, Tankersley denies that she is acting in violation of her Employment Agreement. A true and correct copy of this letter is attached hereto as Exhibit C. 24. To date, there have been no further communications from Tankersley. IRREPARABLE HARM 25. Tankersley agreed that the provisions of her Employment Agreement are reasonably designed to protect Hearing Instruments from irreparable harm. [Sm Employment Agreements (Ex. A) ¶16(c).] During her employment, she became intimately familiar with Hearing Instruments' confidential and proprietary information concerning, inter alia, sales methods and techniques, marketing and sales information and data, equipment costs and expenses, and customer lists (both current and prospective). 26. Tankersley's possession of that knowledge while working for a competitor of Hearing Instruments within the restricted geographic region will result in irreparable harm to Hearing Instruments, which the Employment Agreement was designed to protect against. 27. Hearing Instruments has a legitimate belief and concern that Defendant will interfere with Hearing Instruments' business relationships with its customers. She is likely to continue such action unless restrained. 28. Unless restrained, and because of the proprietary and confidential information that Tankersley has gained through her employment with Hearing Instruments, her employment with Liberty poses an immediate threat and would very likely cause irreparable harm to Hearing 6 Instruments' current business relationships, business opportunities, goodwill, and business reputation. 29. Unless Defendant is restrained, Hearing Instruments will likely continue to suffer the loss of customers, employees, goodwill, revenues, and profit. COUNT I Breach of Contract 30. Hearing Instruments incorporates paragraphs 1 through 29 as though fully set forth herein. 31. The Employment Agreement previously identified herein was entered into by Tankersley in connection with the commencement of her employment with Hearing Instruments, and, as such, is supported by adequate consideration. 32. Tankersley is subject to the terms and conditions of her Employment Agreement with Hearing Instruments, whereby she is prohibited from soliciting Hearing Instruments' employees or customers for a period of two (2) years, and she is prohibited from competing against Hearing Instruments, directly or indirectly, for a period of two (2) years and within a radius of twenty (20) miles of each location where she worked as an employee of Hearing Instruments. 33. Tankersley's continued employment with Liberty is in direct violation of her Employment Agreement in that she is competing with Hearing Instruments inside the twenty (20) mile restricted area. 34. Moreover, and upon information and belief, Tankersley breached her Employment Agreement by soliciting current Hearing Instruments employees to work for Liberty. 7 35. During her employment with Hearing Instruments, Tankersley learned trade secrets and obtained confidential information regarding Hearing Instruments' customer lists, marketing strategies, pricing, costs, and sales of hearing aids and hearing aid accessories. 36. Tankersley, whether consciously or unconsciously, will subject such information to disclosure while competing directly with Hearing Instruments as an employee of Liberty. 37. As a result of the foregoing, Hearing Instruments has been harmed and will continue to be harmed, and, therefore, is entitled to all relief previously agreed to by the parties pursuant to her Employment Agreement, namely, injunctive relief (both preliminarily and permanently), the receipt of compensatory and/or liquidated damages, and such other legal or equitable relief that this Court deems just and proper. COUNT II Breach of Fiduciary Duty 38. Hearing Instruments incorporates paragraphs 1 through 37 as though fully set forth herein. 39. The actions taken by Tankersley, as set forth above, constitute a breach of her fiduciary duty and obligation to Hearing Instruments arising from her confidential relationship with Hearing Instruments. 40. As a result of the aforementioned breach of fiduciary duty, Hearing Instruments will be injured in that it will suffer in its business relationships and lose customers, business, reputation, and/or goodwill. Hearing Instruments lacks an adequate remedy at law and, unless enjoined by this Court, Tankersley will continue to cause irreparable injury and damage to Hearing Instruments as a result of the wrongful acts complained of herein. 8 COUNT III Violation of Pennsylvania Uniform Trade Secrets Act 41. Hearing Instruments incorporates paragraphs 1 through 40 as though fully set forth herein. 42. As set forth above, Tankersley is in possession of valuable proprietary information and trade secrets concerning Hearing Instruments' business, and such information and trade secrets are protected by the Pennsylvania Uniform Trade Secrets Act, 12 Pa. C.S. §§5301 et seq. ("PUTSA"). 43. Defendant knows that that the aforementioned proprietary information and trade secretes were acquired under circumstances giving rise to a duty to maintain their secrecy and limit their use. 44. Defendant has used, or will inevitably use, the aforementioned proprietary information and trade secrets to the advantage of Liberty and to the detriment of Hearing Instruments. 45. Unless Defendant is enjoined from the use and disclosure of Hearing Instruments' proprietary information and trade secrets, Hearing Instruments will suffer irreparable harm and unascertainable monetary damages. 46. Defendant's actions are willful and malicious, thus subjecting her to exemplary damages. 47. As a result of the foregoing, Hearing Instruments is entitled to injunctive relief prohibiting Defendant from disclosing Hearing Instruments' proprietary information and trade secrets pursuant to 12 Pa. C.S. §5303, compensatory damages in an amount yet to be determined pursuant to 12 Pa. C.S. §5304(a), exemplary damages pursuant to 12 Pa. C.S. §5304(b), 9 attorney's fees, expenses, and costs pursuant to 12 Pa. C.S. §5305, and such other legal or equitable relief that this Court deems just and proper. COUNT IV Tortious Interference with Current and Prospective Business Relationships 48. Hearing Instruments incorporates paragraphs 1 through 47 as though fully set forth herein. 49. The actions taken by Defendant, as set forth above, were, and are, intended to harm Hearing Instruments by interfering with Hearing Instruments' current and prospective business relationships. 50. Defendant is aware that her actions violate the aforementioned Employment Agreement. 51. In addition, Defendant is in possession of confidential information and trade secrets owned and developed by Hearing Instruments, and she has used or intends to use, whether consciously or unconsciously, such information to impact Hearing Instruments' ability to perform business and cause current and prospective customers to do business with Liberty instead of with Hearing Instruments. 52. Defendant lacks privilege or justification for such interference. 53. Defendant's actions are willful and malicious, thus subjecting her to exemplary damages. 54. As a result of Defendant's conduct, she has impacted Hearing Instruments' current and prospective business relationships and has caused, and will continue to cause, Hearing Instruments to sustain harm. 55. Asa result of the foregoing, Hearing Instruments is entitled to injunctive relief prohibiting Defendant from further solicitation of Hearing Instruments' employees, customers, 10 and prospective customers, and is further entitled to compensatory and punitive damages in an amount yet to be determined and such other legal or equitable relief that this Court deems proper. COUNT V Unfair Competition 56. Hearing Instruments incorporates paragraphs 1 through 55 as though fully set forth herein. 57. By engaging in the aforementioned conduct, Defendant has engaged in unfair competition with Hearing Instruments. 58. The actions of Defendant have been willful, intentional, and unprivileged, and have caused, and are continuing to cause, irreparable harm as well as imminent monetary damages to Hearing Instruments in an amount yet to be determined. PRAYER FOR RELIEF WHEREFORE, Plaintiff Hearing Instruments, Inc. respectfully requests: (1) After a hearing, that a preliminary injunction issue against Defendant Kellie Tankersley from competing with Plaintiff for a period of two (2) years from the termination of her employment with Hearing Instruments; from soliciting or doing business with Hearing Instruments' customers, both current and prospective, and from disclosing Hearing Instruments' trade secrets or confidential information to anyone; (2) A permanent injunction against Defendant from competing with Hearing Instruments (upon the same durational conditions as the preliminary injunction), from soliciting or doing business with Hearing Instruments' customers, both current and prospective, and from disclosing Hearing Instruments' trade secrets or confidential information to anyone; and 11 (3) A judgment in favor of Hearing Instruments and against Defendant for all direct, consequential, compensatory, incidental, liquidated, and special damages arising out of her aforementioned wrongful conduct, in an amount believed to exceed the jurisdictional threshold for compulsory arbitration, including punitive damages, attorney's fees, costs and such other legal or equitable relief that this Court deems proper. RHOADS & SINON LLP odd J. Shill Stephen Moniak One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Plaintiff, Hearing Instruments, Inc. 12 VERIFICATION Julia C. Beall -McKelvey, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that she is the President of Hearing Instruments, Inc., that she makes this verification by its authority and that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. 6-/7-/1 Date Julia C. Beall -McKelvey 954708.1 EMPLOYMENT AGREEMENT BLARING INSTRUMENTS, INC, In consideration of my employment or continued employment by HEARING INSTRUMENTS, INC., a corporation duly organized and existing in the State of Pennsylvania, with a principal business address at 3425 Simpson Ferry Rd Suite 202 Canip Hill, Pennsylvania (referred to as the "Company") and the compensation paid to me by the Company from time to time, Kellie Tankersley ("Employee") does hereby represent, warrant and agree as follows: WHEREAS, Company desires to employ the services of Employee as a Sales Consultant for the sale and service of hearing aids and hearing aid accessories; and WHEREAS, Employee desires to be employed by the Company in the capacity of Sales Consultant to sell and service hearing aids and hearing aid accessories, l . I agree that during my employment with the Company, I will devote my fitll business time and efforts to the Company and will not, without the Company's express prior written consent, engage in any employment or business other than for the Company: I acknowledge that this Agreement does not create any obligation on my part to work for the Company, or on the part of the Company to employ me, for any fixed period of time, and my employment is at will and may be terminated at any time with or without cause. The Company is not obligated by this Agreement to continue my employment for any particular period, or under any specific terms or conditions, 2. Company agrees to train Employee in the sale and servicing of hearing aids and accessories, 3. Company agrees to pay Employee a compensation based upon sales made by Consultant during the term of this Agreement. The rate of compensation will be determined in advance by the Company and provided in writing to Employee, a copy of which is attached hereto as Exhibit "A". Compensation will be paid based on monies received by Company on Employee's sales and accounts less cancellations. Payment shall be made within twenty (20) days of receipt of satisfactory delivery of products paid in full. Employee understands that compensation rates will change from time to time as conditions, prices, expenses, etc. change, determined by Company. 4. 1 acknowledge and agree that a[1 Confidential Information is the property of the Company and that I have or will have access to knowledge of Confidential Information (hereinafter defined), any part of which may be valuable to the Company, as a consequence of my employment by the Company, including, but not limited to, information that I have conceived, originated, devised, discovered, invented, or developed, either alone or with others. 5, (a) I acknowledge that, in and as a result of the provision by nue of services to the company, I shall or may be making use of, acquiring, observing, examining and adding to the Company's information ofa special and unique nature and value relating to such matters as the Company's trade secrets, systems, concepts, processes, testing processes, techniques, devices, procedures, confidential reports and communications and records and lists of customers and clients and/or prospective customers and clients (hereinafter referred to as "Confidential Information"). As a material inducement to the Company to engage my services (or to continue to so engage my services) and to pay to me compensation for such services to be rendered to the Company by me (it being understood and agreed by me that such compensation shall also be paid and received in consideration hereof), I covenant and agree that I shall not, for any purpose, other than the purposes of the Company, at any time during or following the terms of my provision of services to the Company, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, copy, duplicate, communicate, make available or use to any person or entity, directly or indirectly, for any purpose whatsoever or in any manner, any such 1 Confidential information which has been obtained by or disclosed to me as a result of the Company's engagement of my services. (b) 1 agree 1 may not copy or otherwise duplicate any such Confidential Information in whole or in part, without the prior written approval of the Company, except in connection with and in accordance with the terms hereof. I agree i shall use all reasonable means to safeguard any Confidential Information to which I have access and retain it in a safe and secure place. (c) 1 shall use every reasonable and prudent precaution to ensure that any individual to whom such Confidential Information is or has been disclosed (in connection with the provision by me of services hereunder and in accordance with the terms hereof) does not disclose to any third parties or otherwise use such Confidential Information except pursuant to the terms of this Agreement during, and subsequent to the termination of the relationship between me and such individual. 6. I agree to abide by all state and federal laws governing the sale and service of hearing aids and to uphold all Company policies. 7. (a) Upon termination of this Agreement Company agrees to pay employee all Base Pay earned to date of termination at'the first company payday following employment termination. One Hundred and twenty days after employment termination, Company agrees to pay employee 25% of the total commission earned on net sales if not already paid. In the event employee leaves employment, any bonus earned will be paid provided that after deductions and other adjustments, employee shall qualify for a bonus. In the event that termination of employment is for cause, including violation of company policy or rules, or any state and federal law governing sale and service of hearing aids, no unpaid commissions or bonus will be paid or shall be considered due to an employee. (b) Employee agrees to report to Company each business day all sales and services performed and all monies collected by employee. Employee also agrees to submit within 48 hours of collection all monies collected from sales and customer accounts, (c) Failure of Employee to submit reports or monies in subparagraph (b) will void the obligations of Company under subparagraph (a). (d) Employee has no authority to deduct commissions from monies received, All monies, checks or drafts received will be delivered to Company, endorsed, if necessary, by Employee to Company. 8; Any Confidential Information to which I have access shall be used by me solely in connection With my employment by the Company. It shall not be used either internally or externally by me for any use outside the purpose and scope of my employment by the Company. I shall not make the Confidential Information available for use by, or for the benefit of, any other party, whether or not for consideration, 9. I agree that I will not take with nye any Confidential Information that is in written, machine readable, model, or other form, including sound or video recordings, computer CDs, demo hearing aids, training materials, disks or diskettes, capable of physical delivery, upon or after the termination of my employment with the Company, for any reason whatsoever, without the prior written consent of the Company, 1 also agree that upon termination of my employment with the Company, for any reason whatsoever, to promptly deliver all such materials in my possession or under my control to the Company. I further agree that upon termination of my employment with the Company for any reason whatsoever, I will return to the Company any property of the Company within my possession or control. 2 10, Neither this Agreement, nor any of the rights and obligations under this Agreement of the parties hereto, may be assigned, transferred or otherwise disposed of by me without the Company's written consent. 1 1 . I agree not to engage in any business directly or indirectly competitive with any business of the Company without the Company's prior written consent during the period of my employment with the Company, alone or as a partner officer, agent, joint venture, director or stockholder, or as a consultant, advisor or employee, or otherwise, of any other entity or individual. 12. (a) I agree to devote my best efforts to the work assigned to me by the Company. If 1 have any other employment, I will advise the Company at the tune of hire, If there is any substantial change in the degree of time or effort required of such other work, I will also advise the company of such change. (b) I will not initiate, continue, or expand such outside employment without the express written permission of the Company. 13. (a) 1 represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by me in confidence prior to my employment by the Company, I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict with this Agreement. (b) I agree to advise the Company of the identity of any successor employer for whom I am scheduled to work, prior to the time I terminate employment with the Coinpaniy, I further agree to disclose to any future employer the existence of this Agreement and niy obligations hereunder. 14. If and when I leave the employ of the Company for any reason whatsoever, i agree not to take any action to assist my successor employer or any other individual or entity in recruiting any other employee who had worked for the Company during any time period when I worked for the Company. 1 expressly understand and acknowledge that the provisions of Sections 5, 14 and 15 hereof shall survive termination of this Agreement, for any reason whatsoever, 15. During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which I am or may become associated, nor will 1 directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly, for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof. I recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to each and every location dirty employment with the Company. The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. 3 16. (a) if any provision of this Agreement shall be determined to be invalid or otherwise unenforceable by any court of competent jurisdiction, the validity and enforceability of the other provisions of this Agreement shall not be affected thereby and the provision found invalid or otherwise unenforceable may be appropriately amended by that court so as to be valid and enforceable. (b) This Agreement constitutes the entire agreement and understanding between the Company and me concerning the subject matter thereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by a duly authorized officer of the Company. Failure of the Company to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants and conditions. (c) t acknowledge that money damages alone will not adequately compensate the Company for breach of any of my covenants and agreements herein and, therefore, agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to all other remedies available to the Company, the Company shall be entitled to injunctive relief compelling specific performance of, or other compliance with the terms hereof. I agree that in the event of a breach of either Paragraph 11 or Paragraph 15 of this Agreement by me, 1 will be liable to Company as liquidated damages in an amount of money equal to the total sum of any sales by me as Employee on my own behalf or on behalf of others contrary to the best interests of Company. In addition, Company will retain as liquidated damages any commissions due and owing by Company to me at the time of the breach of this Agreement by me. I acknowledge that I have previously made my living in other fields and that the restrictive provisions of this Agreement in no way prevent me from earning a living in the event I should breach these provisions. (d) This Agreement shall be binding upon me irrespective of the duration of my employment with the Company or the amount of my salary, wages or commissions. For purposes of this Agreement, the period of my employment shall include any time during which I am retained as a consultant by the Company. My obligations under this Agreement shall survive the termination of my employment by the Company irrespective of the reason for such termination and shall not in any way be modified, altered or otherwise affected by such termination. (e) I understand, acknowledge and agree that any violation by me of any of the terms of this Agreement shall result in my immediate tertnination. (f) willingly, I warrant and represent that 1 have the legal right to enter into this Agreement and that I do so (g) This Agreement may not be amended or modified, nor may any of the rights or obligations of any party hereto be waived, except by a superseding written agreement signed by myself and by the Company. (h) The captions to the paragraphs of this Agreement are for the convenience of the parties only and shall not affect the application or construction of the provisions of this Agreement. (1) This Agreement shall be construed, interpreted and applied in accordance with the laws of the Commonwealth of Pennsylvania, applying to contracts fully executed and performed in the State of Pennsylvania. (j) This Agreement contains the entire agreement between the parties. Any and all prior and collateral representations, promises and conditions in connection with the subject matter are merged into this Agreement. Any representation, promise or condition not incorporated herein shall not be binding upon either party. This Agreement supersedes and is in lieu of all existing agreements or arrangements between the parties. 4 17. Employee agrees to work the minimum office hours which are 9:00 am to 5:00 pin in free standing Miracle -Ear Centers and from store opening + 8 hours in Sears stores Monday through Friday. In addition, employee is required to be available to work three evenings per week by appointment and two Satrday's per month by appointment. The minimum office/working hours may be amended from time to time by the company with consent from the employee. 18. Employee understands that as a part of training, and for future evaluations, the Company will, from time to time, be monitoring sessions with clients or customers. I hereby consent to the use of remote monitoring equipment, including both visual and sound, for such purposes. 19, Receipt of Copy of Agreement. I hereby acknowledge receipt of a duplicate copy of this Agreement. I ACKNOWLEDGE THAT BEFORE SIGNING BELOW I ILAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND FULLY UNDERSTAND THE SAME. Dated: ACCEPTED AND AGREED FOR: Signature: Hearing Instruments, Inc. Date: � — 2 5 EXHIBIT "A" Comnensafion for Kellie Taukerslev will be as follows: • Week ending 1/4/2013 compensation will be a $500 salary • Week ending 1/11/2013 compensation will be a $500 salary Beginning 1/11/2013 compensation will be a $300/week draw against conunissions with 15% commission paid on all product lines. PA State Hearing Aid Fitters Exam: • After employee has successfully passed the PA State Hearing Aid Fitters Exam, the compensation plan will be a $300/week draw against commissions with 17% commission paid on all product lines. • Next scheduled PA State Exam is April 26, 2013, Bonus structure: • A 3% bonus will be paid on net sales of $130,000 or more sold in a calendar quarter. The bonus will be considered to be earned 60 days after the end of the quarter on all products satisfactorily delivered. • If any quarterly bonus level is not earned but net sales of $500,000 in a calendar year is achieved, the 3% bonus will still be paid. • An additional 2% bonus will be paid on net sales of $700,000 in a calendar year, • All sales made from any office will count toward bonus. Health Insurance Contributions: • After 90 days, employee will receive $200.00 per month as a contribution to their own Health Insurance Plan. Commissions on Batteries/Accessories: • Beginning with the first full month on the draw system, employee will receive 17% commission on all batteries and accessories sold Vacation: • After 1 year of employment, employee will receive 2 weeks vacation and 5 personal days. See Time and attendance procedure document for additional information on requesting time off. 401K Plan: • Employee will qualify, after 6 months, for participation in the company retirement plan. Employee is responsible for contacting the corporate accountant at our corporate office within 6 months of employment to become enrolled in the company retirement plan. From time to time the company will promote special events and deeply discounted sales. The commission amount will vary with each situation. Compensation arrangements in the future will change as circumstances change, 6 Svcle Confident Agreement Form of Confidentiality Agreement for employees, agents, representatives, third party suppliers, and all other Individuals or entities who utilize or may have access to Confidential Information THIS AGREEMENT is made as of this day, /— 02 , 2013 by and between Hearing Instruments, Mc. ("Franchisee") and Kellie Tau kers ley ("Confidant"). RECITALS A, Miracle -Ear, Inc. ("Miracle -Ear") and Franchisee executed that certain franchise agreement dated as of February 28 2004 and that certain sublicense to access and use agreement (Collectively, the "Franchisee Agreements"). B. Franchisee has received and will periodically receive Confidential Information of Miracle -Ear. "Confidential information" includes the whole or any portion of know-how, knowledge, methods, manuals, specifications, processes, procedures and/or improvements regarding the business that is valuable and secret in the sense that it is not generally known to Miracle -Ear competitors and any proprietary information contained in any Miracle -Ear documents that Miracle - Ear provides to Franchisee and in which Miracle -Ear describes the Miracle -Ear® System or any operational policies, manuals, standards, requirements or practices, whether communicated to Franchisee in writing, verbally or through the internet or other online or computer communications, and any other knowledge or know-how concerning the methods of operation of the Miracle -Ear® centers, C. Pursuant to the Franchisee Agreements, all of Franchisee's employees, agents, representatives, third party suppliers, and all other individuals or entities who utilize or may have access to Confidential Information, may not, at any time, disclose, copy, reproduce, sell or use in any other business or in any manner not specifically authorized or approved in advance in writing by Miracle -Ear any Confidential Information. D. Pursuant to the Franchisee Agreements, Franchisee must obtain Confidentiality Agreements from all of its employees or agents, or any other individual or entity to whom Franchisee has disclosed the Confidential Information. E. Confidant wants to become or currently is an employee of Franchisee and, therefore, it has had and/or will have access to Confidential Information. NOW, THEREFORE, in consideration of foregoing, the payment of $ 1,00 that at the time of execution of this Agreement Franchisee is paying to Confidant, and the mutual covenants and reliance of the parties, the parties agree as follows: 1. Confidant agrees that (a) it will treat as confidential and will not disclose the Confidential Information which may be made or become available to Confidant; (b) it will maintain in a secure place any Confidential Information delivered to it; and (c) it will not use any Confidential Information for any purpose other than in furtherance of its relationship with Franchisee or for any purpose which may be detrimental to Miracle -Ear or Miracle -Ear's present or potential business or shareholders. 2. Confidant represents and warrants that as of this date, Confidant has never disclosed Confidential Information to any third party, with the exception of third parties with wham Confidant has subcontracted for the performance of some or all of Confidant's obligations to Franchisee ("Contidant's Subcontractors"). Confidant represents and warrants that as of this date, Confidant has required Confidant's Subcontractors to maintain the confidentiality of such Confidential Information consistent with the provisions of Paragraph I hereof. 3. Nothing stated herein shall preclude the disclosure of Confidential information in response to a valid order of a court, governmental agency or other governmental body or any political subdivision thereof or as otherwise required by law, provided, however, that if Confidant is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, Confidant will notify Miracle -Ear and Franchisee promptly so that Miracle -Ear and Franchisee may seek a protective order or other appropriate remedy or, in Miracle -Ear's sole discretion, waive compliance with the terms of this Agreement. Confidant agrees to use reasonable efforts to cooperate with Miracle - Ear and Franchisee in connection with Miracle -Ear's and Franchisee's efforts to prevent disclosure or seek confidential treatment or any other remedy respecting such requested or required disclosure. 4. The parties agree that Miracle -Ear and Franchisee would not have an adequate remedy at law for any breach or nonperformance of the terms of this Agreement by Confidant. In the event of a breach or threatened breach of any of the terms of this Agreement by Confidant, Miracle -Ear and Franchisee will forthwith be entitled to an injunction restraining such breach or to a decree of specific performance, without showing or proving any actual damage and without any 7 obligation to post bond or grant any other type of guaranty, together with recovery of reasonable attorneys' fees and other costs incurred in obtaining said equitable relief, until such time as a final and binding determination is made. The foregoing equitable remedies are in addition to, and not in lieu of, all other remedies or rights that Miracle -Ear might otherwise have by virtue of any breach of this Agreement by Confidant, including the right to consequential damages. 5. No modification or waiver of any of the provisions hereof, or any representation, promise or addition hereto, or waiver of any breach hereof', will be binding upon a party unless made in writing and signed by the party to be charged thereby and by Miracle -Ear. No waiver of any particular breach will be deemed to apply to any other breach, whether prior or subsequent to a waiver. This Agreement may not be assigned by Confidant without the express prior written consent of Miracle -Ear, 6. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to this Agreement will be entitled to recover its reasonable attorneys' fees and costs. 7. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to any conflict of laws principles. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of this Agreement must be brought (i) by Confidant, in the Federal District Court for the District of Minnesota or in the State courts located in Hennepin County, Minnesota; (ii) by Miracle -Ear or by Franchisee, in the Federal District Court for the District of Minnesota, in the State courts located in Hennepin County, Minnesota, or in the competent courts located in the State where Confidant has its domicile at the time the action is brought. The parties irrevocably submit themselves to, and consent to, the exclusive jurisdiction of said courts. All parties hereby waive any and all rights to a trial by jury in connection with the enforcement or interpretation by judicial process of any provision of this Agreement, or any legal action initiated for the recovery of damages for breach of this Agreement. 8. Franchisee and Confidant expressly agree that Miracle -Ear is a third party beneficiary of this Agreement and as such Miracle -Ear shall have the right to enforce any and all remedies available upon the violation of any of the provisions under this Agreement. In addition, Miracle -Ear may require Franchisee to bring any action that Miracle -Ear considers appropriate in the event of any breach by Confidant hereunder, in the event that Miracle -Ear or Franchisee make a claim that Confidant has violated Confidant's obligations under this Agreement, Confidant will have the burden of proving that such violation did not occur, 9. Confidant confirms they understand and will comply with all State and Federal legislation relating to the care and handling of electronic records, and furthermore understands that failure to comply with such legislation may result in civil and or criminal actions. Confidant also affirms their future compliance with such regulations including that they shall; 1) access the system only from Miracle -Ear offices, and no other location unless franchisee provides specific written authorization of an additional location for access; 2) use only the unique Username assigned to confidant when accessing the system, and shall protect their Username, and shall notify franchisee if confidant suspects any breach of their logon credentials; 3) shall enter true and accurate information into the system, and understand that entry of such information constitutes their affirmation of such information by means of a legal electronic signature. IN WiTNESS WHEREOF, the parties have caused this Agreement to be executed in the manner appropriate to each. FRANCHISEE CONFIDANT Hearing Instruments, Inc. By: Julia C. McKelvey Its: President and CEO (Employee Si nature By; 8 (Print Name) EXHIBIT B RHOADS & SINON «P Kellie Tankersley 26 Fifth Street Pittsburgh, PA 15215 Dear Ms. Tankersley: March 19, 2014 Re: Hearing Instruments, Inc. Todd J. Shill ph (717) 231-6665 fx (717) 260-4365 tsh i l l(crhoads-s inon. com Reply to Harrisburg Office FILE NO: 5290/37 VIA OVERNIGHT DELIVERY We are writing on behalf of our client, Hearing Instruments, Inc. ("Hearing Instru-ments "). As you know, you are bound by the terms of your Employment Agreement ("Agreement") with Hearing Instruments, a copy of which is enclosed for your reference. Pursuant to the terms of this Agreement, you agreed to the following restrictive covenants: During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which I am or may become associated, nor will I directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the same as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof. 1 recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to One South Market Square, 12th Floor • P.O. Box 1146 • Harrisburg, PA 17108-1146 • ph: 717.233.5731 29 Dowlin Forge Road • Exton, PA 19341 • ph: 610.423.4200 • fax: 610.423.4201 www.rhoads-sinon.com March 19, 2014 Page 2 each and every location of 177y employment with the Company. The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company. (Employment Agreement, 1115. (emphasis added).) Pursuant to the terms of this Agreement, you further agreed not to, "for any purpose, other than the purposes of the Company, at any time during or following the terms of [your] provision of services to the Company, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, copy, duplicate, communicate, make available or use to any person or entity, directly or indirectly, for any purpose whatsoever or in any manner, any such Confidential Information which has been obtained by or disclosed to [you] as a result of the Company's engagement of services." (Id. ¶ 5(a).) Additionally, you specifically agreed not to "take with [you] any Confidential Information that is in written, machine readable, model, or other form, including sound or video recordings, computer CDs, demo hearing aids, training materials, disks or diskettes, capable of physical delivery, upon or after the termination of [your] employment with the Company, for any reason whatsoever, without the prior written consent of the Company" and that, upon termination of your employment, "to promptly deliver [to the Company] all such materials [and any property of the Company] in [your] possession or under [your] control." (Id. 9.) It recently has come to Hearing Instruments' attention that you are now working for a competitor, Liberty Hearing Aids ("Liberty"), at its 289 Mount Nebo Pointe Road location in Pittsburgh, Pennsylvania. This is in direct violation of the foregoing covenants, as the Liberty location at which you currently work is located within twenty (20) miles of at least one of the areas you serviced while employed by Hearing Instruments. Further, Hearing Instruments also is aware that, upon your termination with Hearing Instruments and without permission or authority to do so, you took Company property and Confidential Information, as defined in the Agreement, including, but not limited to, training manuals, sales presentations and pricing information. Your misappropriation of such materials, as well as any use or disclosure of the same, inter alia, directly violates the terms of the Agreement. By this letter, Hearing Instruments hereby demands that you immediately cease and desist from any further violation of your Agreement. In addition, because you may not have informed Liberty that you are subject to the enclosed restrictive covenants, and because your violation of these covenants may subject your employer to liability, we also are mailing a copy of this letter to Liberty's offices, at both its Mount Nebo Pointe Road location as well as its home office in Grand Prairie, Texas. By this letter, we also demand that you immediately return all Company property and Confidential Information (and any copies you may have made of the same) that you unlawfully took from Hearing Instruments. Please respond within seven (7) days from the date of this letter and confirm that, going forward, you will honor the terms of your Agreement with Hearing Instruments. All correspondence should be addressed to this office directly, and not to Hearing Instruments. If we do not hear from you, we will assume that you have chosen not to honor this request. Should that March 19, 2014 Page 3 occur, Hearing, Instruments may be forced to seek judicial intervention and obtain injunctive relief in addition to any other remedies available to it. Per the terms of your Agreement, these remedies include, but are not limited to; liquidated damages in an amount equal to the total sum of any sales made by you as an employee of Liberty. We trust that you will not make this necessary. Very truly yours, Todd J. Shill Enclosure cc: Julia C. Beall -McKelvey (w/o encl.) Liberty Hearing Aids (w/encl.) EMPLOYMENT AGREEMENT HL+ARLNG INSTRUMENTS, INC. In consideration of my employment or continued employment by HEARING INSTRUMENTS, INC., a corporation duly organized and existing in the State of Pennsylvania, with a principal business address at 3425 Simpson Ferry Rd Suite 202 Camp Hill, Pennsylvania (referred to as the "Company") and the compensation paid to me by the Company from time to time, Kellie Tankersley ("Employee") does hereby represent, warrant and agree as follows: WHEREAS, Company desires to employ the services of Employee as a Sales Consultant for the sale and service of hearing aids and hearing aid accessories; and WHEREAS, Employee desires to be employed by the Company in the capacity of Sales Consultant to sell and service hearing aids and hearing aid accessories. 1, I agree that during my employment with the Company, I will devote my full business time and efforts to the Company and will not, without the Company's express prior written consent, engage in any employment or business other than for the Company: I acknowledge that this Agreement does not create any obligation on my part to work for the Company, or on the part of the Company to employ me, for any fixed period of time, and my employment is at will and niay be terminated at any time with or without cause. The Company is not obligated by this Agreement to continue my employment for any particular period, or under any specific terms or conditions, 2. Company agrees to train Employee in the sale and servicing of hearing aids and accessories, 3, Company agrees to pay Employee a compensation based upon sales made by Consultant during the term of this Agreement. The rate of compensation will be determined in advance by the Company and provided in writing to Employee, a copy of which is attached hereto as Exhibit "A". Compensation will be paid based on monies received by Company on Employee's sales and accounts less cancellations. Payment shall be made within twenty (20) days of receipt of satisfactory delivery of products paid in full. Employee understands that compensation rates will change from time to time as conditions, prices, expenses, etc. change, determined by Company. 4. 1 acknowledge and agree that all Confidential Information is the property of the Company and that i have or will have access to knowledge of Confidential Information (hereinafter defined), any part of which may be valuable to the Company, as a consequence of my employment by the Company, including, but not limited to, information that I have conceived, originated, devised, discovered, invented; or developed, either alone or with others. 5. (a) I acknowledge that, in and as a result of the provision by me of' services to the company, I shall or may be making use of, acquiring, observing, examining and adding to the Company's information of a special and unique nature and value relating to such matters as the Company's trade secrets, systems, concepts, processes, testing processes, techniques, devices, procedures, confidential reports and conununications and records and lists of customers and clients and/or prospective customers and clients (hereinafter referred to as "Confidential Information"). As a material inducement to the Company to engage my services (or to continue to so engage my services) and to pay to me compensation for such services to be rendered to the Company by me (it being understood and agreed by me that such compensation shall also be paid and received in consideration hereof), l covenant and agree that I shall not, for any purpose, other than the purposes of the Company, at any time during or following the terms of my provision of services to the Company, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, copy, duplicate, communicate, make available or use to any person or entity, directly or indirectly, for any purpose whatsoever or in any manner, any such Confidential Information which has been obtained by or disclosed to me as a result of the Company's engagement of niy services. (b) I agree 1 may not copy or otherwise duplicate any such Confidential Information in whole or in part, without the prior written approval of the Company, except in connection with and in accordance with the terms hereof, I agree I shall use all reasonable means to safeguard any Confidential Information to which I have access and retain it in a safe and secure place. (c) 1 shall use every reasonable and prudent precaution to ensure that any individual to whore such Confidential Information is or has been disclosed (in connection with the provision by me of services hereunder and in accordance with the terms hereof) does not disclose to any third parties or otherwise use such Confidential Information except pursuant to the terms of this Agreement during, and subsequent to the termination of the relationship between me and such individual. 6. I agree to abide by all state and federal laws governing the sale and service of hearing aids and to uphold all Company policies. 7. (a) Upon termination of this Agreement Company agrees to pay employee all Base Pay earned to date of termination af'the first company payday following employment termination. One Hundred and twenty days after employment termination, Company agrees to pay employee 25% of the total commission earned on net sales if not already paid. In the event employee leaves employment, any bonus earned will be paid provided that after deductions and other adjustments, employee shall qualify for a bonus. In the event that termination of employment is for cause, including violation of company policy or rules, or any state and federal law governing sale and service of hearing aids, no unpaid commissions or bonus will be paid or shall be considered clue to an employee. (b) Employee agrees to report to Company each business day all sales and services performed and all monies collected by employee. Employee also agrees to submit within 48 hours of collection all monies collected from sales and customer accounts, (c) Failure of Employee to submit reports or monies in subparagraph (b) will void the obligations of Company under subparagraph (a). (d) Employee has no authority to deduct commissions from monies received. All monies, checks or drafts received will be delivered to Company, endorsed, if necessary, by Employee to Company. 8, Any Confidential Information to which I have access shall be used by me solely in connection with my employment by the Company. It shall not be used either internally or externally by me for any use outside the purpose and scope of my employment by the Company. I shall not make the Confidential Information available for use by, or for the benefit of, any other party, whether or not for consideration. 9. I agree that I will not take with me any Confidential Information that is in written, machine readable, model, or other form, including sound or video recordings, computer CDs, demo hearing aids, training materials, disks or diskettes, capable of physical delivery, upon or after the termination of my employment with the Company, for any reason whatsoever, without the prior written consent of the Company, 1 also agree that upon termination of my employment with the Company, for any reason whatsoever, to promptly deliver all such materials in my possession or under my control to the Company. I further agree that upon termination of my employment with the Company for any reason whatsoever, 1 will return to the Company any property of the Company within my possession or control. 2 10. Neither this Agreement, nor any of the rights and obligations under this Agreement of the parties hereto, may be assigned, transferred or otherwise disposed of by me without the Company's written consent, 11. I agree not to engage in any business directly or indirectly competitive with any business of the Company without the Company's prior written consent during the period of my employment with the Company, alone or as a partner officer, agent, joint venture, director or stockholder, or as a consultant, advisor or employee, or otherwise, of any other entity or individual. 12. (a) 1 agree to devote my best efforts to the work assigned to me by the Company. If 1 have any other employment, 1 will advise the Company at the tune of hire. If there is any substantial change in the degree of time or effort required of such other work, I will also advise the company of such change. (b) J will not initiate, continue, or expand such outside employment without the express writ -ten permission of the Company. 13. (a) I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by me in confidence prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict with this Agreement. (b) I agree to advise the Company of the identity of any successor employer for whom I am scheduled to work, prior to the time I terminate employment with the Company, I further agree to disclose to any future employer the existence of this Agreement and my obligations hereunder. 14. If and when I leave the employ of the Company for any reason whatsoever, I agree not to take any action to assist my successor employer or any other individual or entity in recruiting any other employee who had worked for the Company during any time period when I worked for the Company. 1 expressly understand and acknowledge that the provisions of Sections 5, 14 and 15 hereof shall survive termination of this Agreement, for any reason whatsoever. 15. During my employment with the Company and for a period of two (2) years after my employment is terminated for any reason, with or without cause, I will not directly or indirectly recruit or hire any employee of the Company, or otherwise induce such employee to leave the employment of the Company, to become an employee of or otherwise be associated with me or any company or business with which i am or may become associated, nor will 1 directly or indirectly solicit present or former clients or customers of the Company. I further agree not to induce, promote or facilitate the discontinuation of any existing or prospective customer relationship, whether or not such relationship with the Company was obtained through my efforts. I further agree that I shall not, for a continuous uninterrupted period commencing upon the expiration or termination of my employment by the Company, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly, for myself or through or on behalf of or in conjunction with any person, entity or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, make loans to, or have any interest whatsoever in any business which is the saline as or substantially similar to the Company's business, or that of any Company affiliate or parent, and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof. I recognize that from time to time my employment may be at different locations and that this paragraph 15 applies to each and every location of my employment with the Company. The initial area to be served by Employee is Greensburg, Peunsvlvania and may be amended from time to time by instruction of the Company. 3 16. (a) 'fatty provision of this Agreement shall be determined to be invalid or otherwise unenforceable by any court of competent jurisdiction, the validity and enforceability of the other provisions of this Agreement shall not be affected thereby and the provision found invalid or otherwise unenforceable may be appropriately amended by that court so as to be valid and enforceable. (b) This Agreement constitutes the entire agreement and understanding between the Company and me concerning the subject matter thereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by a duly authorized officer of the Company. Failure of the Company to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants and conditions. (c) I acknowledge that money damages alone will not adequately compensate the Company for breach of any of my covenants and agreements herein and, therefore, agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to all other remedies available to the Company, the Company shall be entitled to injunctive relief compelling specific performance of, or other compliance with the terms hereof. I agree that in the event of a breach of either Paragraph 11 or Paragraph 15 of this Agreement by me, I will be liable to Company as liquidated damages in an amount of money equal to the total sum of any sales by me as Employee on my own behalf or on behalf of others contrary to the best interests of Company. In addition, Company will retain as liquidated damages any commissions due and owing by Company to me at the time of the breach of this Agreement by me. 1 acknowledge that I have previously made my living in other fields and that the restrictive provisions of this Agreement in no way prevent me from earning a living in the event I should breach these provisions. (d) This Agreement shall be binding upon me irrespective of the duration of my employment with the Company or the amount of my salary, wages or commissions. For purposes of this Agreement, the period of my employment shall include any time during which I ani retained as a consultant by the Company. My obligations under this Agreement shall survive the termination of my employment by the Company irrespective of the reason for such termination and shall not in any way be modified, altered or otherwise affected by such termination, (e) I understand, acknowledge and agree that any violation by me of any of the terms of this Agreement shall result in my immediate termination. (f) willingly. I warrant and represent that 1 have the legal right to enter into this Agreement and that I do so (g) This Agreement may not be amended or modified, nor may any of the rights or obligations of any patty hereto be waived, except by a superseding written agreement signed by myself and by the Company. (h) The captions to the paragraphs of this Agreement are for the convenience of the parties only and shall not affect the application or construction of the provisions of this Agreement. (1) This Agreement shall be construed, interpreted and applied in accordance with the laws of the Commonwealth of Pennsylvania, applying to contracts fully executed and performed in the State of Pennsylvania. (j) This Agreement contains the entire agreement between the parties. Any and all prior and collateral representations, promises and conditions in connection with the subject matter are merged into this Agreement. Any representation, promise or condition not incorporated herein shall not be binding upon either party, This Agreement supersedes and is in lieu of all existing agreements or arrangements between the parties. 4 17. Employee agrees to work the minimum office Hours which are 9:00 am to 5:00 pin in free standing Miracle -Ear Centers and from store opening + 8 hours in Sears stores Monday through Friday. In addition, employee is required to be available to work three evenings per week by appointment and two Saturday's per month by appointment. The minimum office/working hours may be amended from time to time by the company with consent from the employee. 18. Employee understands that as a part of training, and for future evaluations, the Company will, from time to time, be monitoring sessions with clients or customers. i hereby consent to the use of remote monitoring equipment, including both visual and sound, for such purposes. 19, Receipt of Copy of Agreement. I hereby acknowledge receipt of a duplicate copy of this Agreement. I ACKNOWLEDGE THAT BEFORE SIGNING BELOW I I-IAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND FULLY UNDERSTAND THE SAME. Dated: ACCEPTED AND AGREED FOR: Hearing Instruments, inc. SignatIire: Date: WITNESS: 5 EXHIBIT "A" Compensation for Kellie Tankersley will be as follows: • Week ending 1/4/2013 compensation will be a $500 salary • \Veek eliding 1/11/2013 compensation will be a $500 salary Beginning 1/11/2013 compensation will be a $300/week draw against commissions with 15% commission paid on all product lines. PA State Hearing Aid Fitters Exani: • After employee has successfully passed the PA State Hearing Aid Fitters Exam, the compensation plan will be a $300/week draw against commissions with 17% commission paid on all product lines. • Next scheduled PA State Exam is April 26, 2013, Bonus structure: • A 3% bonus will bepaid on net sales of $130,000 or more sold in a calendar quarter. The bonus will be considered to be earned 60 days after the end of the quarter on all products satisfactorily delivered. • If any quarterly bonus level is not earned but net sales of $500,000 in a calendar year is achieved, the 3% bonus will still be paid. • An additional 2% bonus will be paid on net sales of $700,000 in a calendar year, • All sales made from any office will count toward bonus. Health Insurance Contributions: • After 90 days, employee will receive $200.00 per month as a contribution to their own Health Insurance Plan. Commissions on Batteries/Accessories: • Beginning with the first full month on the draw system, employee will receive 17% commission on all batteries and accessories sold Vacation: • After I year of employment, employee will receive 2 weeks vacation and 5 personal days. See Time and attendance procedure document for additional information on requesting time off, 401K Plat • Employee will qualify, after 6 months, for participation in the company retirement plan, Employee is responsible for contacting the corporate accountant at our corporate office within 6 months of employment to become enrolled in the company retirement plan. From time to time the company will promote special events and deeply discount amount will vary with each situation. Compensation arrangements in the future I change, 6 sales. The commission I change as circumstances Svcle Confident Agreement Form of Confidentiality Agreement for employees, agents, representatives, third party suppliers, and all other Individuals or entities who utilize or may have access to Confidential Information THIS AGREEMENT is made as of this day, /' A , 2013 by and between Hearing instruments, Inc. ("Franchisee") and Kellie Tankersley ("Confidant"). RECITALS A. Miracle -Ear, Inc. ("Miracle -Ear") and Franchisee executed that certain franchise agreement dated as of February 28 2004 and that certain sublicense to access and use agreement (Collectively, the "Franchisee Agreements"). B. Franchisee has received and will periodically receive Confidential Information of Miracle -Ear. "Confidential Information" includes the whole or any portion of know-how, knowledge, methods, manuals, specifications, processes, procedures and/or improvements regarding the business that is valuable and secret in the sense that it is not generally known to Miracle -Ear competitors and any proprietary information contained in any Miracle -Ear documents that Miracle - Ear provides to Franchisee and in which Miracle -Ear describes the Miracle -Ear® System or any operational policies, . manuals, standards, requirements or practices, whether communicated to Franchisee in writing, verbally or through the Internet or other online or computer communications, and any other knowledge or know-how concerning the methods of operation of the Miracle -Ear® centers. C. Pursuant to the Franchisee Agreements, all of Franchisee's employees, agents, representatives, third party suppliers, and all other individuals or entities who utilize or may have access to Confidential Information, may not, at any time, disclose, copy, reproduce, sell or use in any other business or in any manner not specifically authorized or approved in advance in writing by Miracle -Ear any Confidential Information. D. Pursuant to the Franchisee Agreements, Franchisee must obtain Confidentiality Agreements from all of its employees or agents, or any other individual or entity to whom Franchisee has disclosed the Confidential Information. E. Confidant wants to become or currently is an employee of Franchisee and, therefore, it has had and/or will have access to Confidential Information. NOW, THEREFORE, in consideration of foregoing, the payment of $1.00 that at the time of execution of this Agreement Franchisee is paying to Confidant, and the mutual covenants and reliance of the parties, the parties agree as follows: I. Confidant agrees that (a) it will treat as confidential and will not disclose the Confidential Information which may be made or become available to Confidant; (b) it will maintain in a secure place any Confidential Information delivered to it; and (c) it will not use any Confidential Information for any purpose other than in furtherance of its relationship with Franchisee or for any purpose which may be detrimental to Miracle -Ear or Miracle -Ear's present or potential business or shareholders. 2. Confidant represents and warrants that as of this date, Confidant has never disclosed Confidential Information to any third party, with the exception of third parties with whom Confidant has subcontracted for the performance of some or all of Confidant's obligations to Franchisee ("Confidant's Subcontractors"). Confidant represents and warrants that as of this date, Confidant has required Confidant's Subcontractors to maintain the confidentiality of such Confidential Information consistent with the provisions of Paragraph 1 hereof. 3. Nothing stated herein shall preclude the disclosure of Confidential Information in response to a valid order of a court, governmental agency or other governmental body or any political subdivision thereof or as otherwise required by law, provided, however, that if Confidant is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, Confidant will notify Miracle -Ear and Franchisee promptly so that Miracle -Ear and Franchisee may seek a protective order or other appropriate remedy or, in Miracle -Ear's sole discretion, waive compliance with the terms of this Agreement. Confidant agrees to use reasonable efforts to cooperate with Miracle - Ear and Franchisee in connection with Miracle -Ear's and Franchisee's efforts to prevent disclosure or seek confidential treatment or any other remedy respecting such requested or required disclosure. 4. The parties agree that Miracle -Ear and Franchisee would not have an adequate remedy at law for any breach or nonperformance of the terms of this Agreement by Confidant. In the event of a breach or threatened breach of any of the terns of this Agreement by Confidant, Miracle -Ear and Franchisee will forthwith be entitled to an injunction restraining such breach or to a decree of specific performance, without showing or proving any actual damage and without any 7 obligation to post bond or grant any other type of guaranty, together with recovery of reasonable attorneys' fees and other costs incurred in obtaining said equitable relief, until such time as a final and binding determination is made. The foregoing equitable remedies are in addition to, and not in lieu of, all other remedies or rights that Miracle -Ear might otherwise have by virtue of any breach of this Agreement by Confidant, including the right to consequential damages. 5. No modification or waiver of any of the provisions hereof, or any representation, promise or addition hereto, or waiver of any breach hereof, will be binding upon a party unless made in writing and signed by the party to be charged thereby and by Miracle -Ear. No waiver of any particular breach will be deemed to apply to any other breach, whether prior or subsequent to a waiver. This Agreement niay not be assigned by Confidant without the express poor written consent of Miracle -Ear, 6. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to this Agreement will be entitled to recover its reasonable attorneys' fees and costs. 7, This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to any conflict of laws principles. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of this Agreement must be brought (i) by Confidant, in the Federal District Court for the District of Minnesota or in the State courts located in Hennepin County, Minnesota; (ii) by Miracle -Ear or by Franchisee, in the Federal District Court for the District of Minnesota, in the State courts located in Hennepin County, Minnesota, or in the competent courts located in the State where Confidant has its domicile at the time the action is brought. The parties irrevocably submit themselves to, and consent to, the exclusive jurisdiction of said courts. All parties hereby waive any and all rights to a trial by jury in connection with the enforcement or interpretation by judicial process of any provision of this Agreement, or any legal action initiated for the recovery of damages for breach of this Agreement. 8. Franchisee and Confidant expressly agree that Miracle -Ear is a third party beneficiary, of this Agreement and as such Miracle -Ear shall have the right to enforce any and all remedies available upon the violation of any of the provisions raider this Agreement. In addition, Miracle -Ear may require Franchisee to bring any action that Miracle -Ear considers appropriate in the event of any breach by Confidant hereunder. In the event that Miracle -Ear or Franchisee make a claim that Confidant has violated Confidant's obligations under this Agreement, Confidant will have the burden of proving that such violation did not occur. 9. Confidant confirms they understand and will comply with all State and Federal legislation relating to the care and handling of electronic records, and furthermore understands that failure to comply with such legislation may result in civil and or criminal actions. Confidant also affirms their future compliance with such regulations including that they shall; 1) access the system only from Miracle -Ear offices, and no other location unless franchisee provides specific written authorization of an additional location for access; 2) use only the unique Usernatne assigned to confidant when accessing the system, and shall protect their Username, and shall notify franchisee if confidant suspects any breach of their logon credentials; 3) shall enter true and accurate information into the system, and understand that entry of such information constitutes their affirmation of such information by means of a legal electronic signature. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in the manner appropriate to each. FRANCHISEE CONFIDANT Hearing Instruments, Inc. By; Julia C. McKelvey Its: President and CEO 8 EXHIBIT C 4123253348 11:18:27 a.m. 03-28-2014 2 /3 SAMUEL J. COR DES & ASSOCIATES Attorneys at Law 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 (412) 281-7991 (412) 325-3348 (Telefax) www.cordesemploymentlaw.com CHRISTINE T. ELZER CELZE12riTCORDESLAME] Rn:LCO\ I March 28, 2014 VIA FACSIMILE Todd. J. Schill Rhoads & Sinon One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108 Re: Kellie Tankersley/Hearing Instruments, Inc. Dear Mr. Schill: 1 have been retained by Kellie Tankersley in connection with the matters raised in your letter to her dated March 19, 2014. 1 am writing in response to that letter. At the outset, Ms. Tankersley has not violated the non -competition portion of her Employment Agreement because her work location is more than 20 miles away. The Agreement precludes Ms. Tankersley from working in a substantially similar business within the area served by her, or within 20 miles thereof. The Agreement further provides: "The initial area to be served by Employee is Greensburg, Pennsylvania and may be amended from time to time by instruction of the Company." The Company never amended this provision. As you note, Ms. Tankersley currently works for Liberty Hearing Aids at 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237. This location is more than 40 miles from Greensburg. As such, she has not breached the Agreement. Additionally, Ms. Tankersley has not retained any property from Hearing Instruments, Inc., and specifically does not have any training manuals, sales presentations, or pricing information. Not only did you accuse Ms. Tankersley of unfounded violations of the Agreement, you also forwarded your letter to her current employer at both Ms. Tankersley's work location and the employer's home office. In so doing, you have given the employer the false impression that Ms. Tankersley breached a restrictive covenant and stole things from former employer, and also threatened the employer with "liability." Your decision to send this letter to the employer without 4123253348 11:18:51 a.m. 03-28-2014 3 /3 SAMUEL J. CORDES & ASSOCIATES Todd J. Schill March 28, 2014 Page Two a. full investigation of the facts could subject you and your client to liability for tortious interference with contractual relations. As such, Ms. Tankersley demands that you send another letter to her employer retracting the accusations set forth in the March 19, 2014 letter. Finally, Ms. Tankersley has not received her last paycheck from Hearing Instruments, Inc., and also did not receive her 2013 W-2. Please direct your client to provide these items to Ms. Tankersley by April 11, 2014. Thank you for your attention to this matter. If you have any questions, please contact me. Very truly yours, • CIALotifrAy Christine T. Elzer C 1 h:mdd CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2014, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Kellie Tankersley c/o Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Boulevard, 2nd Floor Pittsburgh, PA 15222 Teresa H. Laughead HEARING INSTRUMENTS, INC., Plaintiff (Cotintp of QCumbertanb V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-01871 CIVIL TERM KELLIE TANKERSLEY, Defendant IN EQUITY IN RE: MOTION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 201h day of June 2014, upon consideration of the Plaintiff's Motion for Preliminary Injunction, the Motion is DENIED. This Court is not convinced that immediate and irreparable harm will be sustained before a hearing can be held. A HEARING on the Injunction request shall be held on 10 July 2014, at 2:00 p.m. in Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Thom s . Placey C.P.J. Distribution List: ,,,-'Todd J. Shill, Esq. ✓Christine T. Elzer, Esq. ,, ellie Tankersley (2o 1'es OL3 I.L( C7- CSC, :Z --i CD Todd J. Shill,Esquire THE PROTHC;NG iAr Attorney ID No. 69225 Stephen Moniak, Esquire !IN LI JUN 26 AM I 1 2 Attorney ID No. 80035 RHOADS & SINON LLP CUMBERLAND COUNTY One South Market Square, 12th Floor PENNSYLVANIA PO Box 1146 Harrisburg,PA 17108-1146 Telephone: (717)233-5731 Facsimile: (717)238-8622 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys far Plaintiff Hearing Instruments, Inc. HEARING INSTRUMENTS, INC., ) IN THE COURT OF COMMON PLEAS ) CUMBERLAND COUNTY, Plaintiff ) PENNSYLVANIA V. ) LAW AND EQUITY ) KELLIE TANKERSLEY, ) ) NO. 2014-01871 Defendant ) PLAINTIFF'S MOTION FOR CONTINUANCE NOW COMES Plaintiff Hearing Instruments, Inc., by its attorneys, Rhoads & Sinon LLP, and files the within Motion for Continuance, stating as follows: 1. On June 17, 2014, Plaintiff Hearing Instruments, Inc. (hereinafter "Hearing Instruments") filed a verified Complaint and Motion for Preliminary Injunction to enjoin Defendant Kellie Tankersley from engaging in competitive activity with Hearing Instruments for a period of two (2) years and within a twenty (20) mile radius of each Hearing Instruments location where she worked following the termination of her employment. Hearing Instruments also seeks an injunction against Defendant from disclosing Hearing Instruments' trade secrets and confidential information in breach of her Employment Agreement with Hearing Instruments. 2. The Honorable Thomas A. Placey issued an Order dated June 20, 2014 setting a hearing date of July 10, 2014 at 2:00 p.m. for Hearing Instruments' Motion for Preliminary Injunction. 3. Hearing Instruments' President/CEO and key witness in this matter, Julia M. Beall-McKelvey, will be out of the country from July 3, 2014 through July 14, 2014 due to a previously scheduled trip, and, thus, unavailable to testify at the hearing on behalf of Hearing Instruments. 4. In light of Ms. Bea11-McKelvey's unavailability, Hearing Instruments respectfully requests that the Hearing be continued and re-scheduled for a date as soon as practicably possible after July 14, 2014. 5. Hearing Instruments has sought Defendant Kellie Tankersley's concurrence with this request, but she has not responded as of the filing of this Motion. Specifically, the undersigned counsel initially contacted Christine T. Elzer, Esquire, who previously represented Defendant in connection with Plaintiff's demand letter, but has since advised that she is not representing Defendant in this lawsuit. Ms. Elzer provided this office with an email address for Defendant, and this office sent Defendant an email on June 24, 2014 for the purpose of obtaining her concurrence with this request. Ms. Tankersley has not responded to the email as of the filing of this Motion. 2 WHEREFORE, Plaintiff Hearing Instruments, Inc. respectfully requests this Honorable Court to grant a continuance of the July 10, 2014 Hearing on its Motion for Preliminary Injunction until a date after July 14, 2014. Respectfully submitted, RHOADS & SINON LLP By: ` Todd J.J. Shil Stephen Moniak One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff, Hearing Instruments, Inc. 3 CERTIFICATE OF SERVICE I hereby certify that on this a 5' day of $ / , 2014, a true and correct copy of the foregoing Motion for Continuance was served by means of United States mail, first class, postage prepaid, upon the following: Kellie Tankersley c/o Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 Teresa H. Laughead / HEARING INSTRUMENTS, INC., ) ) Plaintiff ) ) v. ) ) KELLIE TANKERSLEY, ) Defendant ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO. 2014-01871 IN RE: MOTION FOR PRELIMINARY INJUNCTION ORDER OF COURT 100 1)(41 AND NOW, this day of.J.ucie, 2014, upon consideration of Plaintiff's Motion for Continuance, it is hereby ORDERED that the Motion is GRANTED. The Hearing on Plaintiff's Motion for Preliminary Injunction scheduled for July 10, 2014 is CONTIINUED. A HEARING on Plaintiff's Motion for Preliminary Injunction shall be held on August' , 2014 at 1.00 km. in Courtroom NoS of the Cumberland County Courthouse, Carlisle, Pennsylvania. 9tribution List: d J. Shill, Esq. and Stephen Moniak, Esq. ./Kellie Tankersley I £S A -W * 15k_ 7/1-M BY THE CURT: Thomas A. Piacey Common Pleas Judge A y HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant Count) of €umber[attb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-01871 CIVIL TERM IN EQUITY IN RE: PLAINTIFF'S MOTION FOR EXPEDITED DISCOVERY ORDER OF COURT v AND NOW, this 2 day of dtmn 2014, upon consideration of the Plaintiff's Motion for Expedited Discovery, and it appearing that Plaintiff is requesting a continuance of the 10 July 2014 hearing, the Motion is hereby deemed MOOT. The continuation, as requested by Plaintiff, should provide ample time for Plaintiff complete discovery. istribution List: Do dd J. Shill, Esq. ✓C ristine T. Elzer, Esq. ✓Kellie Tankersley cor 02.t. Va.py Thomas A. Placey C.P.J. C(i HEARING INSTRUMENTS, INC., Plaintiff, vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA c.72: 2014-01871 CIVIL TERM " 2 t -n KELLIE TANKERSLEY, IN EQUITY CD ,': —t Defendant. �' c -11 ' v cD �= MOTION TO CONTINUE HEARING AND TO STAY DISCOVERY { cn ,; PENDING DETERMINATION OF VENUE Defendant, Kellie Tankersley, by undersigned counsel, files this Motion to Continue Hearing and To Stay Discovery Pending Determination of Venue, and in support states as follows: 1. On June 17, 2014, Plaintiff, Hearing Instruments, Inc. filed a Complaint in this Court, alleging claims arising out of Defendant, Kellie Tankersley's, alleged actions following her employment with Plaintiff, including breach of contract, breach of fiduciary duty, violation of the Pennsylvania Uniform Trade Secrets Act, and tortious interference with business relationships, and unfair competition. 2. On June 17, 2014, Plaintiff also filed a Motion for Preliminary Injunction. 3. A hearing on Plaintiff's Motion for Preliminary Injunction is currently scheduled for August 4, 2014 at 9:00 am before the Honorable Thomas A. Placey. Judge Placey has previously ruled on Plaintiff's Motion for Preliminary Injunction; Plaintiffs Motion for Continuance; and Plaintiffs Motion for Expedited Discovery. 4. On July 11, 2014, Tankersley retained Attorney Christine T. Elzer and the law firm of Samuel J. Cordes & Associates as counsel in this matter. Prior to this date, Attorney Elzer represented Ms. Tankersley in connection with responding to a letter sent by Plaintiff before Plaintiff 1 filed this lawsuit. However, Tankersley was only very recently able to secure funds to be able to retain counsel to defend this lawsuit. 5. Tankersley requests to continue the preliminary injunction hearing, in part, so that her counsel will have time to prepare for the hearing and to take discovery. As explained further below, she also wishes to continue the hearing pending a determination of whether the current venue is appropriate. 6. Within the next week, Tankersley plans to file a Petition to Transfer Venue on the grounds of forum non conveniens, pursuant to Pa. R. Civ. P. 1006(d)(1). 7. Essentially, Tankersley's forthcoming Petition will seek to transfer venue to Allegheny County, Pennsylvania because of the financial and logistical burden on Tankersley to defend this action in a forum more than 200 miles from her residence. At all times relevant to this litigation, Tankersley has resided in Pittsburgh, Allegheny County, PA. She worked for Plaintiff in the neighboring Westmoreland County, PA. All alleged actions giving rise to Plaintiff's claims occurred in Allegheny County, PA, where Tankersley allegedly breached her employment agreement and engaged in unfair competition. The only connection to Cumberland County whatsoever is that Tankersley signed an employment agreement, which gives rise to one of Defendant's five causes of action, at Plaintiff's headquarters in Camp Hill, PA. It would be unduly burdensome to require Tankersley, an individual, to defend this action brought by Defendant, a corporation, in a distant forum under these circumstances. 8. Plaintiff originally noticed the deposition of Tankersley for July 21, 2014 in Harrisburg. Due to a scheduling conflict, Tankersley's counsel requested to reschedule the deposition. Counsel further requested to conduct the deposition via telephone or video conference 2 to minimize the financial burden on Tankersley. 9. Plaintiff refused to conduct the deposition via telephone or video conference, and insists on taking the deposition in person in Harrisburg. Plaintiff re -noticed the deposition for July 28, 2014 to accommodate counsel's scheduling request. 10. Given that the Petition to Transfer Venue will seek to transfer this case to Allegheny County, Tankersley believes it would be premature and financially burdensome to be required to travel to the Cumberland/Dauphin County area twice—for the deposition and for the preliminary injunction hearing—before the Court makes a determination about the propriety of the current venue. 11. Accordingly, Tankersley respectfully requests that this Court continue the preliminary injunction hearing and stay all discovery until such time as the Court can make a determination on Plaintiff's forthcoming Petition to Transfer Venue. 12. Tankersley's counsel conferred with counsel for Plaintiff, who advised that Plaintiff opposes any continuance, stay, or transfer petition. WHEREFORE, Defendant, Kellie Tankersley, requests that this Court grant her Motion to Continue Hearing and to Stay Discovery Pending Determination of Venue. 3 Respectfully submitted, Samuel J. Cordes & Associates (b)C4A4 Samuel J. Cordes Christine T. Elzer Pa. I.D. No. 54874 (Cordes) Pa.I.D. No. 208157 (Elzer) 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Defendant 4 CERTIFICATE OF SERVICE I hereby certify on this 17`h day of July, 2014 I served a copy of the foregoing Motion to Continue Hearing and to Stay Discovery Pending Determination of Venue via email and regular mail upon the following: Todd J. Schill Stephen Moniak One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Christine T. Elzer HEARING INSTRUMENTS, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, 2014-01871 CIVIL TERM- vs. rn KELLIE TANKERSLEY, IN EQUITY CD Defendant. .T7 •-- PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Christine T. Elzer as counsel for Defendant, Kellie Tankersley, in the above-captioned matter. r---, Respectfully submitted, Samuel J. Cordes & Associates atak-tv (14yl1t-i Samuel J. Cordes Christine T. Elzer Pa. I.D. No. 54874 (Cordes) Pa.I.D. No. 208157 (Elzer) 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify on this 17th day of July, 2014 I served a copy of the foregoing Praecipe for • Entry of Appearance via email and regular mail upon the following: Todd J. Schill Stephen Moniak One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Christine T. Elzer Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak; Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: tshill@rhoads-sinon.com Strioniak@rhoads-sinon.com Attorneys for Plaintiff HEARING INSTRUMENTS, INC;; Plaintiff OF THE P � 2014 JUL Z N NOTARY PENNSANd COIJN. 'PENNSYLVANIA rY ) • IN THE COURT OP:COMMONPLEAS ' ) CUMBERLAND COUNTY, PENNSYLVANIA KELLIE TANKERSLEY, Defendant ) IN EQUITY NO. 2614-0187 CIVIL TERM PLAINTIVE'S RESPONSE TO,DEFENDANT'S MOTION_TO CONTINUE HEARING AND TO STAY DISCOVERY PENDING DETERMINATION OF VENUE t Plaintiff Hearing Instruments, Inc. ("Hearing Instruments"), by and through its counsel, Rhoads: & Sinon LLP, responds to Defendant Kellie Tarikersley's-•Motion to Continue Hearing and to Stay' Discovery Pending Determination•ofVenue, as follows: -- I . ollows:;-1. Admitted: .By way. of :further response, this'action • was. coniinenced by writ of summons on March. 28, 2014; and both' the writ• of summons• and Complaint are written documents that speaks for themsel.yes, . 2. Admitted. - By way of .further: response, ,Hearingt.Instruments' Motion for Preliminary Injunction is a written document that speaks for itself 3. Admitted.. 958660.1 inconvenient. Bratic v. Rubendall, 43 A.3d 497, 500 (Pa, Super. 2012) (quoting Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200; 701 A.2d 156, 162 (1997)). A petition to transfer venue is not properly granted "unless the defendant meets the burden of demonstrating, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant." Id. Defendant's stated justification for seeking transfer falls far short of satisfying this standard, and therefore, the Court should deny the instant Motion. By way of further answer, it is denied the only connection to Cumberland County pled in this case is that Defendant signed her employment agreement at Hearing Instruments' headquarters in Camp Hill, PA. She also completed training conducted by Hearing Instruments at its office in Camp Hill, at which time she learned confidential and proprietary information of Hearing Instruments, which, upon information and belief, she is now using in her new position with Liberty. It is further denied that the foregoing allegations in the Complaint give rise to one of five causes of action; as all claims relate to Defendant's knowledge and use of Hearing Instruments' confidential information. 8. Admitted in part and denied in part. It is admitted that Tankersley's deposition was originally noticed for July 21, 2014 in Harrisburg. Plaintiffs counsel accommodated defense counsel's request to reschedule the deposition and re -noticed the deposition for July 28, 2014, a date that defense counsel indicated that she was available for the deposition. By way of further answer, Plaintiffs counsel also accommodated defense counsel's request for an extension of time to respond to the Complaint through July 25, 2014. It is admitted that defense counsel requested the deposition to be conducted by telephone or video, which request was denied. The remaining allegations in this paragraph are denied. 3 4. Admitted in part, and denied in part. It is admitted that no later than March 28, 2014, Ms. Elzer indicated to the undersigned attorneys that she was retained by Defendant in connection with the matters raised in the undersigned's "demand letter" to Defendant dated March 19, 2014. By way of further response, the undersigned attorneys provided Ms. Elzer copies of the Complaint, Motion for Preliminary Injunction and Supporting Brief when they were filed the Court on June 17, 2014. As to when Ms. Elzer was retained by Defendant as counsel "in this matter" (to the extent such representation did not continue beyond March 28, 2014) and the monetary arrangements averred in this paragraph, Hearing Instruments is without sufficient information or belief as to the truth of these averments, and the same are denied. 5. Denied. Hearing Instruments opposes the request to continue the preliminary injunction hearing and submits that Defendant's attempt to transfer venue of this case lacks merit and would only serve to unnecessarily delay a determination on the pending Motion for Preliminary Injunction. 6. Denied. Defendant has not filed any petition to transfer venue as of the filing of this response, and to the extent such a filing is made, it lacks merit and would only serve to unnecessarily delay a determination on the pending Motion for Preliminary Injunction. 7. Denied. Defendant has not filed any petition to transfer venue as of the filing of this response, and to the extent such a filing is made, it lacks merit and would only serve to unnecessarily delay a determination on the pending Motion for Preliminary Injunction. As stated by Defendant, Defendant's primary reason for seeking transfer of venue for forum non conveniens is the alleged inconvenience to her, and therefore, it is highly unlikely that such a petition would be granted. It is well-established under Pennsylvania law that the defendant must meet its burden of proving that the plaintiff's chosen forum much more than merely 2 9. Admitted in part and denied in part. It is admitted that Tankersley's deposition has been re -noticed for July 28, 2014 in order to accommodate defense counsel's scheduling request. To the extent Defendant implies she has a right to a telephone or video deposition, that allegation is denied. Plaintiff has a right to depose Tankersley in person to assess her credibility as a witness and present her with exhibits and other documents during the course of the deposition. Plaintiff also has the right to receive the documents requested in the Deposition Notice from Defendant at the deposition and to question her about said documents. The Pennsylvania Rules of Civil Procedure require Plaintiff's counsel agreement to conduct this key deposition via telephone or video conference, and Plaintiff does not agree. 10. Denied. It is specifically denied that staying discovery and the hearing in this matter will serve justice. By way of further response and as set forth in greater detail in Plaintiffs Motion for Preliminary Injunction and Brief in support thereof, Tankersley's ongoing employment with Hearing Lab Technology, LLC or Liberty Hearing Aids is in violation of the non -compete clause in her Employment Agreement with Hearing Instruments. Hearing Instruments has suffered, and will continue to suffer, irreparable harm until its Motion for Preliminary Injunction is heard by and ruled upon by this Court. Further delay will only result in increased harm suffered by Hearing Instruments. Therefore, Defendant's Motion should be denied to allow the parties to proceed with the scheduled deposition of Tankersley on July 28, 2014 and the hearing on Plaintiffs Motion for Preliminary Injunction on August 4, 2014. 11. Denied. Defendant has not filed any petition to transfer venue as of the filing of this response, and to the extent such a filing is made, it lacks merit and would only serve to unnecessarily delay a determination on the pending Motion for Preliminary Injunction. Hearing 4 Instruments respectfully requests that this Court deny Tankersley's Motion to allow the parties to proceed with Tankersley's deposition and hearing as scheduled. 12. Admitted. Plaintiff incorporates its response to paragraphs 1 through 11 above as if fully set forth herein. WHEREFORE, Plaintiff Hearing Instruments, Inc. respectfully requests that this Honorable Court deny Defendant's Motion to Continue Hearing and to Stay Discovery Pending Determination of Venue. RHOADS & SINON LLP ". dd J. S ill Stephen Moniak One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Plaintiff 5 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of July, 2014, a true and correct copy of the foregoing Plaintiffs Response To Defendant's Motion To Continue Hearing And To Stay Discovery Pending Determination Of Venue was served by means of electronic mail and United States mail, first class, postage prepaid, upon the following: Christine T. Elzer, Esquire Samuel J. Cordes & Associates 245 Fort Pitt Blvd. Pittsburgh, PA 15222 Teresa H. Laughead EiLEU-.OF'FICE of THE PROTHONOTARY HEARING INSTRUMENTS, INC.2014 JUL 2 PM .1 Plaintiff CUMBERLAND PENNS v. KELLIE TANKERSLEY, Defendant QCottntp of QCumbrrfanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-01871 CIVIL TERM IN EQUITY IN RE: DEFENDANT'S MOTION TO CONTINUE HEARING AND TO STAY DISCOVERY PENDING DETERMINATION OF VENUE ORDER OF COURT AND NOW, this 23rd day of July 2014, upon consideration of the Defendant's Motion to Continue Hearing and to Stay Discovery Pending Determination of Venue, a RULE is issued upon Plaintiff to show cause why the relief requested should not be granted. Further, it is ORDERED that the 28 July 2014 deposition of Defendant is hereby POSTPONED pending resolution of Defendant's Motion. RULE RETURNABLE on 31 July 2014 by close of business. Plaintiff should include a proposed order with the answer. This Court will make a determination regarding whether to continue the 4 August 2014 hearing upon receiving Plaintiff's answer. ThomaA Placey C.P.J. Djztribution List: d J. Shill, Esq. Christine T. Elzer, Esq. Ctb ties r' - t1L ")..2.2//5/ HEARING INSTRUMENTS, INC., Plaintiff, vs. KELLIE TANKERSLEY, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2014-01871 CIVIL TERMc-s� IN EQUITY PETITION TO TRANSFER VENUE ON THE GROUNDS OF FORUM NON CONVENIENS -11 7-4 r71 _< c� _ c) -11F.-) CD CDp Defendant, Kellie Tankersley, by undersigned counsel and pursuant to Pa. R. Civ. P. 1006(d)(1), petitions the Court to transfer venue on the grounds of forum non conveniens, and in support states the following: 1. This is an action for alleged breach of contract, breach of fiduciary duty, violation of the Pennsylvania Uniform Trade Secrets Act, tortious interference with current and prospective business relationships, and unfair competition. Plaintiff, Hearing Instruments, Inc., attempts to claim its former employee, Defendant Kellie Tankersley, breached various duties as a result of becoming employed by an alleged competitor and by retaining alleged confidential documents. 2. Pursuant to Pa. R. Civ. P. 1006(d)(1), Defendant Tankersley requests that the Court transfer venue to Allegheny County on the grounds of forum non conveniens. The Rule provides: "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought." Pa. R. Civ. P. 1006(d)(1). A. The Action Could Originally Have Been Brought in Allegheny County. 3. Defendant Tankersley resides in Pittsburgh, Allegheny County, Pennsylvania. 1 (Tankersley Affidavit ¶1, Exhibit 1). 4. Tankersley resided in Allegheny County when she worked for Plaintiff. (Tankersley Affidavit ¶3); (Complaint ¶2). 5. Tankersley currently works for Liberty Hearing Aids (Hearing Lab Technology, LLC) in Allegheny County. (Tankersley Affidavit ¶12, Exhibit 1); (Complaint ¶12, 17). 6. In Count I of Plaintiff's Complaint, Plaintiff claims Tankersley breached her Employment Agreement by working for Liberty Hearing Aids in Allegheny County. (Complaint ¶17, ¶33). 7. Counts II through V of Plaintiff's Complaint relate to Tankersley's alleged retention of confidential information for the benefit of her new employer, located in Allegheny, and/or deal with her competing with Plaintiff while working for her new employer in Allegheny County. 8. As such, all Counts of Plaintiff's Complaint arise primarily out of conduct that occurred in Allegheny County. 9. This case's only connection to Cumberland County is that Tankersley signed the Employment Agreement, which forms the basis of Count I, in Camp Hill, Pennsylvania. 10. In Plaintiff's Response to Defendant's Motion to Continue Hearing and to Stay Discovery Pending Determination of Venue, Plaintiff claims Tankersley "also completed training conducted by Hearing Instruments at its office in Camp Hill, at which time she learned confidential and proprietary information of Hearing Instruments, which, upon information and belief, she is now using in her new position with Liberty." See Plaintiff's Response ¶7. 11. However, Plaintiff s claims do not relate to Tankersley using information she learned during training in Camp Hill. Rather, Plaintiff claims "upon Tankersley 's termination with Hearing 2 Instruments and without permission or authority to do so, she took Company property and Confidential Information, as defined in the Agreement, including, but not limited to, training and technical manuals, sales manuals and presentations and pricing information." (Complaint ¶18)(emphasis added). 12. Therefore, only Count I has any relation to Cumberland County, and even that Count relates primarily to conduct that allegedly occurred in Allegheny County. 13. As set forth above, transactions and occurrences related to each of Plaintiff's causes of action occurred in Allegheny County. Thus, the action could have been brought in Allegheny County pursuant to Pa. R. Civ. P. 1006(a)(1), which provides, in part, that venue is proper in a county "in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose." 14. Moreover, Tankersely resides and works in Allegheny County, and may be served there. Thus, the action could have been brought in Allegheny County pursuant to Pa. R. Civ. P. 1006(a)(1), which provides, in part, that venue is proper in a county in which "the individual may be served." 15. Therefore, a transfer of venue to Allegheny County would be proper under Rule 1006(d)(1)'s requirement that "the action could originally have been brought" there. B. Venue Should Be Transferred to Prevent Oppression to Tankersley and Other Witnesses. 1. Tankersley will incur additional expenses to defend in this forum. 16. Tankersley resides 194 miles from the Court of Common Pleas of Cumberland County. (Tankersley Affidavit ¶2). 3 17. Plaintiff has noticed Tankersley' s deposition at its counsel' s office in Harrisburg, 208 miles from Tankersley's residence. (Tankersley Affidavit ¶2); (Notice of Deposition of Tankersley, Ex. 2). 18. Plaintiff's counsel has refused to conduct Tankersley's deposition via telephone or video conference to minimize the burden on Tankersley. (Email from S. Moniak dated 7/11/14, Exhibit 3). 19. If Tankersley is required to travel to Cumberland and/or Dauphin County to defend this lawsuit, she would suffer great financial hardship. (Tankersley Affidavit ¶6). 20. If this case remains in this venue, Tankersley's counsel expects to be required to travel to Cumberland County and/or Dauphin County at least five (5) times throughout this litigation: (1) Tankersley's deposition; (2) the depositions of witnesses for Plaintiff, who must be deposed within 100 miles of the courthouse unless Tankersley wants to pay reasonable expenses and attorneys' fees, see Pa. R. Civ. P. 4008; (3) the preliminary injunction hearing; (4) argument on Tankersley's preliminary objections; and (5) trial. 21. Tankersley herself will be required to travel to Cumberland County and/or Dauphin County at least four (4) times, including all of the above occasions with the exception of argument on preliminary objections. 22. Tankersley currently does not have a working automobile, and would have to undergo additional travel expenses to be able to travel to Cumberland County and Dauphin County by taking public transportation or renting a car. (Tankersley Affidavit ¶7). 23. Even assuming a rental car costs $20 per day (a low estimate), Tankersley will incur approximately $80 in car rental for fees for four trips to the Cumberland/Dauphin area. 4 24. Even assuming the rental car's fuel efficiency is 25 miles per gallon (a generous estimate), Tankersley will incur approximately $60 in gas expenses for each round trip. (400 miles/25 miles per gallon = 16 gallons. 16 gallons * $3.76 per gallon =$60.16). 25. The current IRS mileage rate for business miles traveled is 56 cents per mile. Thus, Tankersley's counsel will incur $211.68 round trip for each trip to the Court of Common Pleas of Cumberland County, and $227.36 round trip for each trip to Plaintiff's counsel's office. 26. During each trip, Tankersley will incur approximately $40 in tolls round trip, and her counsel will incur an additional approximately $40 in tolls. Specifically, trips to Carlisle cost $19.35 one way, and trips to Harrisburg cost $20.30 one way. (PA Turnpike Printouts, Exhibit 4). 27. Each trip from Pittsburgh to the Cumberland County Courthouse will take approximately hours 6 and 30 minutes round trip. 28. Each trip from Pittsburgh to Plaintiffs counsel's office in Harrisburg is approximately 7 hours round trip. 29. Thus, Tankersley will spend an estimated 27 hours traveling to and from the Cumberland/Dauphin County area during this case. 30. Tankersley's counsel will spend an estimated 33.5 hours traveling to and from the Cumberland/Dauphin County area during this case. 31. The Superior Court has affirmed that a venue can be oppressive when it results in travel in excess of three and a half hours, and involves at least 200 round trip miles. See Stoner v. Penn Kleen, Inc., 59 A.3d 612, 615 (Pa. Super. Ct. 2012). 32. Here, Tankersley will have to travel approximately 400 miles and 6.5 hours round trip each time she travels, and is expected to have to do so at least four times. Thus, the venue here 5 is even more oppressive than in Stoner. 33. Tankersley will incur an additional $6,700 in attorneys' fees for her counsel to travel for this case. (33.5 hours * $200/hour = $6,700). 34. As set forth in the table attached hereto as Exhibit 5, Tankersley expects to incur approximately an additional $8,500 in expenses as a result of the case being in this forum. (Table, Exhibit 5). Even not considering fees for attorney time, the costs to Tankersley would still be approximately $1,800. See id. 35. Plaintiff, as a corporation with approximately 35 stores, is in a markedly better position to bear the expenses of pursuing its claims in another forum than Tankersley, an employee who earns approximately $65,000 per year, is of defending in this forum. (Tankersley Affidavit ¶10). 36. Tankersley is a "hapless citizen being hauled into court," rather than a professional insurance adjustor or other individual employed in a client -based profession who will be compensated for travel time. Cf Bratic v. Rubendall, 43 A.3d 497, 502 (Pa. Super. Ct. 2012)'(quoting Walls v. Phoenix Ins. Co., 979 A.2d 847, 853 (Pa. Super. Ct. 2009)). 2. Other witnesses will incur additional expenses if required to travel to this forum. 37. It is highly likely that all witnesses in this matter, with the exception of Plaintiff's President, reside outside Cumberland County. 38. For example, four of Plaintiff's five claims arise out of Tankersley allegedly taking company property and confidential information "upon Tankersley's termination." (Complaint ¶18). 39. Defendant alleges that when Tankersley worked for Plaintiff, she worked in 'Bratic is currently on appeal to the Pennsylvania Supreme Court. See Bratic v. Rubendall, 65 A.3d 294 (Pa. 2013). 6 Westmoreland County and Beaver County. (Complaint ¶14). 40. Thus, any alleged taking would have occurred in Westmoreland or Beaver County. 41. Both Westmoreland County and Beaver County are within approximately 45 miles of Allegheny County, and are approximately 200 miles from Cumberland County. 42. As such, any witnesses to Tankersley's alleged taking would be located in Western Pennsylvania. (Tankersley Affidavit ¶13). 43. Defendant alleges Tankersley breached her Employment Agreement by working for her new employer in Allegheny County. (Complaint ¶J 17, 33). 44. To defend this case, Tankersley expects to call witnesses who can testify to the differences between her current employment and her former employment with Plaintiff, as well as whether Tankersley is using any of Plaintiff s confidential information in her new employment. 45. These witnesses will include supervisory employees of Tankersley's new employer, Hearing Lab Technology, LLC. (Kidd Affidavit ¶8, Exhibit 6). 46. None of Tankersley's supervisors reside in or near Cumberland County. (Kidd Affidavit ¶7). 47. If the venue remains in Cumberland County, each such witness would be required to incur additional expenses similar to the expenses to be incurred by Tankersley and her counsel, including mileage and toll fees. 48. Specifically, Tankersley's first two supervisors in her chain of command work in Pittsburgh, Allegheny County. (Kidd Affidavit ¶2). 49. Tankersley's next supervisor in her chain of command, the District Manager, lives and resides in Johnstown, Cambria County, Pennsylvania. (Kidd Affidavit ¶3). 7 50. The District Manager is likely to have particularly relevant knowledge to the matters raised in this lawsuit, (Kidd Affidavit ¶9). 51. The District Manager resides approximately 72.4 miles from the Court of Common Pleas of Allegheny County, and resides approximately 116 miles from the Court of Common Pleas of Cumberland County. (Kidd Affidavit ¶10). 52. Thus, the District Manager would be required to travel approximately 87.2 additional miles to testify at a hearing in Cumberland County than he would have to travel to testify in Allegheny County. 53. The Senior Vice President of Tankersley's current employer, Sharon Kidd, believes she would be the principal company witness in support of Tankersley, and believes it would be very difficult logistically for her to travel to the Cumberland County Courthouse for this action. (Kidd Affidavit ¶8). 54. For example, there is no commercial airport in Cumberland County, while the Pittsburgh International Airport is located in Allegheny County. Thus, it would be more burdensome for Ms. Kidd to travel to Cumberland County than to Allegheny County. 55. For all of the foregoing reasons, the forum of the Court of Common Pleas of Cumberland County is oppressive to Tankersley, rather than merely inconvenient. Litigating this matter in Allegheny County would provide for easier access to the witnesses, and would substantially reduce the financial burden on Tankersley and the other witnesses. 56. Counsel for Plaintiff has stated Plaintiff opposes any motion for transfer of venue. WHEREFORE, Defendant, Kellie Tankersley, respectfully requests that this Court issue a rule upon Plaintiff to show cause why venue should not be transferred to Allegheny County, and that 8 the Court thereafter transfer venue to Allegheny County. Respectfully submitted, Samuel J. Cordes & Associates (76cqpbC4-A/LA Samuel J. Cordes Christine T. Elzer Pa. I.D. No. 54874 (Cordes) Pa. I.D. No. 208157 (Elzer) 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Defendant 9 HEARING INSTRUMENTS, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2014-01871 CIVIL TERM vs. KELLIE TANKERSLEY, IN EQUITY Defendant. AFFIDAVIT OF KELLIE TANKERSLEY I, Kellie Tankersley, make the following declaration: 1. I reside at 3655 Colby Street, Pittsburgh, PA 15214. 2. I reside 194 miles from the Court of Common Pleas of Cumberland County in Carlisle, PA, and I reside 208 miles from the office of Rhoads and Sinon in Harrisburg, PA, where my deposition has been noticed. 3. When I worked for Plaintiff, Hearing Instruments, Inc., I resided at 26' Fifth Street, Pittsburgh, PA 15215, which is also approximately 200 miles from the Court of Common Pleas of Cumberland County. 4. When I worked for Plaintiff, Hearing Instruments, Inc., my work location was 125 Nature Park Road, Greensburg, PA 15601, which is also in the Western Pennsylvania area. 5. I only visited the Camp Hill, PA location of Hearing Instruments, Inc. on 2 occasion(s) to attend training. 1 6. If I am required to travel to the Court of Common Pleas of Cumberland County to defend this lawsuit, I would suffer great financial hardship. 7. I currently do not have a working automobile, and would have to undergo additional travel expenses to be able to travel to Cumberland County and Dauphin County by taking public transportation or renting a car. D EXHIBIT t 8. .1 would also incur additional expenses to reimburse my counsel to travel from the Pittsburgh area to Cumberland County and Dauphin County. 9. I earn approximately. $65,000 per year. 10. I believe I earn substantially less moneyand have significantly less resources than Plaintiff, a Miracle Ear franchise with approximately 35 stores. 11. Most of the potential. witnesses in this case are located in the Pittsburgh, PA area. 12. For example, Plaintiff claims I breached my employment agreement by working. for Liberty Hearing Aids ("Liberty") at 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237. Any witnesses who could testify to my job duties at Liberty and how they differ from my job with Plaintiff would. be located in the Pittsburgh. area. 13. Plaintiff also claims I took company property and confidential information upon my termination. While I deny that I did so, any witnesses who would. have knowledge of such taking would be located in the Western Pennsylvania area, 14. I believe Plaintiffs choice of forum in thiscase is oppressive and vexatious, and was chosen with the intent of increasing the costs of the litigation against me. I affirm under penalty of perjury that the foregoing is- true and correct to the best of my knowledge, intbrrnati011, and belief. / Date Todd J. Shill, Esquire Attorney 11) No. 69225 Stephen Mouiak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8622 tshill(t),1 rhoads-sinon.com snioniakralrhoads-sinon.cont AtIornep for Plain10.: Hearing Instruinenls, HEARING INSTRUMENTS, 1NC,, ) ) Plaintiff ) ) v. ) ) KELLIE TANKERSLEY, ) ) Defendant ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LAW AND EQUITY NO. 2014-01871 NOTICE OF DEPOSITION TO; Kellie Tankersley c/o Liberty :Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh, PA 15237 PLEASE TAKE NOTICE that pursuant .to Pa. R. Civ. P. 4007.1, Plaintiff will take the deposition of Kellie Tankersley upon oral examination for the purpose of discovery andlor for use at trial before a Notary Public or other person Authorized .to administer oath, at the Law Offices of Rhoads & Sinon LLP, 213 S. Market Street, 12th Floor, Harrisburg, PA, on July 21, 2014 at 10:00 a.m..„ and continuing from day to -day thereafter .until completed, on all matters not privileged which are relevant and material to the issues and subject matter involved in the above -captioned action. Kellie Tankersley is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath: b a EXHIBIT Please take further notice that 'Kerne Tankersley is requested, pursuant to Pa. R. Civ. P. 4009.1 and 4007.1(d), to bring to the deposition, and permit Plaintiff to inspect and copy at the deposition the documents identified in Exhibit "A" attached hereto. A. DEFINITIONS The following definitions shall apply to this Notice .of Deposition: 1. "Documents" shall mean any correspondence, memoranda, inter -office communication, intra -office communication, agreement, minute, report, note, schedule, book of account, ledger, invoice, receipt, purchase order, pleading, questionnaire, contract, bill, check, draft, diary, log, proposal, bid, recording, telex, telegram, drawing, picture, table, graph, chart, map or survey; including the originals and working, handwritten drafts of all of the above and any copies thereof which are different from the original by way of interlineal:ion or notation, including any transcript or summary of the foregoing and any other tangible date compilations from which information may be used, including word processor systems, and any computer-based data in any medium. "Document" shall also mean any written, handwritten, printed, typed, or other graphic matter of any kind or nature, however produced, reproduced, or copies, including data compilations, e-mail, texts, and all other electronically stored data, however stored (including. data files stored irilonoffice desktop computers/workstations. notebook/laptop computers, home or personal computers, staff computers, palmtop devices or electronic organizers/secretaries, and network file servers/mini-computers; backup tapes including system -wide backups, disaster recovery backups, and personal or "ad hoc" backups; and other media sources including tape archives, replaced/removed drives, floppy diskettes, CD-ROMs, DVDs, zip cartridges, and 2 other portable media), photographs, microfilms, video and audio tapes, and any other data compilations from which information can be obtained. B. INSTRUCTIONS The following instructions shall apply to this Notice of Deposition: 1. If any privilege is claimed as to any document, state for each such document its date, author, addressees, format (emu., memo, letter, notes), the nature of .the privilege claimed (e.g., attorney-client, work product) and the basis for claiming the privilege as to each specific item of information. 2. If any documents requested herein or fairly comprised within the scope of the requests have been lost. or destroyed, please identify the documents so lost or destroyed together with the following information: (a) the date of origin; (b) a brief description of such document; (c) the author of the document; (d) the date upon which the document was lost or destroyed; and (e) a brief statement of the manner in which the document was lost or destroyed. By: 3 Respectfully submitted,. RHOADS : --- ON LLP odd J. Shill Stephen Moniak One South. Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-573I ,Attorneys, for .Plaintiff .Hearing Instruments, Inc. EXHIBIT "A" 1 . All documents relating to your employment with Hearing Lab Technology, LLC or Liberty Hearing Aids. 2. All documents relating to any other employment you sought or obtained following your termination of employment with Hearing Instruments, Inc. on or about March 22, 2013. 3. All information of Hearing Instruments, ,Inc. in your possession, custody or control, including but not limited to, trailing and technical manuals, sales manuals, presentation, and pricing information. 4. All documents reflecting your communications with any present or former customer of Hearing instruments, Inc. from March 1, 2013 to the present. 5. All documents reflecting sales by you, individually or on behalf of Hearing Lab Technology. LLC or Liberty Hearing Aids, from the beginning of your employment with Hearing Lab Technology, LLC or Liberty Hearing Aids to the- present. 6. A copy of your calendar from January 1, 2013 to the present. 7, All documents .reflecting communications with any current or former employee of Hearing Instruments, Inc. from March 1; 2013 to the present. CERTIFICATE OF SERVICE I hereby certify that on this / day of 6/2V,... , 2014, a true and Correctcopy of the foregoing Notice of Deposition was served by means ofelectronic Mail and United States mail; first class, postage prepaid, upon the following: Kell ie Tankersley do Liberty Hearing Aids 289 Mount Nebo Pointe Road Pittsburgh; PA 15237 Teresa 11 Laughead Christine Elzer From: Stephen Moniak <SMoniak@rhoads-sinon.com> Sent: Friday, July 11, 2014 4:18 PM To: Christine Elzer Subject: RE: Hearing Instruments, Inc. v. Kellie Tankersley Christine, We are not amenable to taking her deposition over the phone or video conference. We have every right to conduct her deposition in this location in person. It is not unduly burdensome to have you client attend the deposition in the forum in person, and the Judge's order specifically contemplates plaintiff conducting discovery prior to the hearing. As to your travel expenses, whatever arrangement you have is between you and your client. As for your request to reschedule, I will get back to you after I consult my client early next week. Steve From: Christine Elzer [mailto:celzer@cordeslawfirm.com] Sent: Friday, July 11, 2014 4:07 PM To: Stephen Moniak Subject: RE: Hearing Instruments, Inc. v. Kellie Tankersley Thank you. Please be advised that I am unavailable on July 21 because I have another deposition in Pittsburgh. I would be available the week of July 28 if you would like to reschedule. Are you amenable to taking the deposition over the phone or via video conference? I believe it is overly burdensome to require Ms. Tankersley to travel over 200 miles from her residence for a deposition, and to pay my travel expenses to do so. Thanks, Christine From: Stephen Moniak [mailto:SMoniak@ rhoads-sinon.com] Sent: Friday, July 11, 2014 3:54 PM To: Christine Elzer Subject: RE: Hearing Instruments, Inc. v. Kellie Tankersley Ms. Elzer, You can have a 2 week extension to file a responsive pleading to the complaint by July 25, 2014. Please email me a copy of your filing when you make it. I am not sure what documents your client got in the mail today. We previously served her with a notice of deposition, by email and regular mail to her office (again because we do not have a forwarding address from her last known residential address). Its for July 21 at 10am at my office. Ms. Tankersley previously responded to me that she is available for that date, but requested we start later. I replied we could start at noon to accommodate her travel. She did not get back to me. Please let me know if you want to start at 10am or noon that day. Please note it requires the production of certain documents. EXHIBIT 3 ' Finally, the judge has rescheduled the hearing on the injunction for August 4 at 9am per the attached order. Stephen Moniak, Esq. Rhoads & Sinon LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 717.237.6732 (direct) 717.238.8622 (fax) smoniak@rhoads-sinon.com From: Christine Elzer[mailto:celzerCacordeslawfirm.com] Sent: Friday, July 11, 2014 2:03 PM To: Stephen Moniak Cc: Teresa H. Laughead Subject: Hearing Instruments, Inc. v. Kellie Tankersley Dear Mr. Moniak, I now have been retained by Kellie Tankersley in connection with this lawsuit. I understand that the deadline to respond to the Complaint was today. Given that I have just been brought on for representation, could you kindly agree to a 2 - week extension for me to file a responsive pleading by July 25, 2014? Additionally, I understand that Ms. Tankersley received some documents from you in the mail at work today. Could you please forward those documents to me? Thank you for your attention to this matter. Sincerely, Christine 7. ECzer, Esquire Samuel- J. Cordes e Associates 245 Fort Pitt Boulevard Pittsburgh, Vt 15222 (412) 281-7991 (412) 325-3348 (faac) www.cordesempthymentraw.com Notice: This email transmission, including any attachments, may contain confidential information protected by the attorney-client or --other legal privilege. -Unauthorized use, distribution -or copying is prohibited. If you received this email in error, please notify the sender by replying to this email or by calling Rhoads & Sinon LLP at 717.233.5731 and deleting the erroneous transmission from your system without copying it. Thank You. " The United States Treasury Regulations and Circular 230 require all tax professionals to advise their clients that any U.S. federal tax advice contained in any written communications (including emails and attachments thereto) is not intended to be used, and cannot be used, by any recipient for the purpose of avoiding penalties that may be imposed under federal tax laws. Furthermore, no statement contained herein should be used to promote, market or recommend any federal tax transactions to third parties." Any person reviewing this information, other than the intended recipient, is expressly advised to consult with their own independent tax advisor with respect to any tax advice contained herein. Notice: This email transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this email in error, please notify the sender by replying to this email or by calling Rhoads & Sinon LLP at 717.2315731 and deleting the erroneous transmission from your system without copying it. Thank You. " The United States Treasury Regulations and Circular 230 require all tax professionals to advise their clients that any U.S. federal tax advice contained in any written communications (including emails and attachments thereto) is not intended to be used, and cannot be used, by any recipient for the purpose of avoiding penalties that may be imposed under federal tax laws. Furthermore, no statement contained herein should be used to promote, market or recommend any federal tax transactions to third parties." Any person reviewing this information, other than the intended recipient, is expressly advised to consult with their own independent tax advisor with respect to any tax advice contained herein. 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Warrendale Toll Plaza (#30) is the end of the end of the ticket system and will be the last tolling point for westbound motorists travelling towards Ohio. There is an eastbound toll to enter Pennsylvania via the Gateway Toll Plaza. The one-waytolling conversion was required to reduce congestion and allow the installation of Express E-ZPass lanes at Gateway. Contact Us 1 Emergency Numbers/Contact Info 1 Terms & Conditions / Privacy 1 PA Right to Know Law Information Request Commission Meeting Schedule 1 Fraud & Abuse Tip Box 1 Employment Applications 1 Transportation Links http://vvww.paturnpike.com/toll/tollrnileage.aspx 1/2 Type of Expense Approx. Cost . Estimated # Times Expense Incurred Estimated Total Tankersley Rental Car $20/day 4 $80 Tankersley Gas for Rental Car $60/round trip 4 $240 Tankersley Tolls $40/round trip 4 $180 Counsel Mileage $211.68/ round trip to Court 3 $645.04 Counsel Mileage $227.36/round trip to Plaintiff's counsel's office 2 $454.72 Counsel Tolls $40/round trip 5 $200 Counsel Fees $1,400 round trip to Plaintiff's counsel's office 2 $2,800 Counsel Fees $1,300 round trip to Court 3 $3,900 Estimated Total $8,499.76 EXHIBIT HEARING INSTRUMENTS, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2014-01871 CIVIL TERM vs. KELLIE TANKERSLEY, IN EQUITY Defendant. AFFIDAVIT OF SHARON KIDD I, Sharon Kidd, make the following declaration: 1. I am the Senior Vice President of Hearing Lab Technology, LLC, Kellie Tankersley's current employer. 2. Ms. Tankersley's immediate supervisor is the Optical Manager of the Sam's Club facility she works at. This person works in Pittsburgh, Pennsylvania. Her next level supervisor is the Sam's Club store manager who also works in Pittsburgh, Pennsylvania. 3. Ms. Tankersley's next -level supervisor is our District Manager, who lives and works out of his Johnstown, Pennsylvania field office. 4. Ms. Tankersley's next -level supervisor is our Regional Manager, who lives and works out of her office in Tennessee. 5. I am the senior operating officer of the Company to whom Ms. Tankersley's reports outside the CEO of the Company. _____ 6._ _ I reside.in Rogers, Arkansas, which is in Benton County, Arkansas. 7. Ms. Tankersley does not work in nor have any reporting relationship to anyone in or near the Cumberland County, Pennsylvania area. 8. I believe I and the other supervisors mentioned above would have knowledge relevant to the matters raised in the lawsuit that Hearing Instruments, Inc. has brought against Mg, "., '31' �n lv,'v.r: ltj� I11cI dint' haw uilr bu: i;,]ess di] C ry:from that of 1 icari:ng iris[ un.lt"nt ., and whether Ms. Taii&ers1cs.' i4 using any He irlii s Intitrclrnent' confidential ir.Ll.uitrial.iof. th. C•Upri oche' miploy!-K0with HI ."f` >>:1.f.. 1 thcr:;fbrc believe I and citherI1LT Ettani!ers;I. like S° r! I;•:• imiira`Iti wsi.ls in this case. 1 will r71 m l ul (C1_v lay > nkt 'pLii ciple c{Jmpi1.11;t' •is,lt.hc'•:• . tIx" :li(3pl trf' rit` -.c an er .el .actc1 ditfii.01,11t iohii: ti r cI Iy for meis urr t 1 Ir c iiM ' cour1:1:Li u L (Qi Zki ae6ion 9_ I believe lvls. T, n1.4:sslcy s17i trice r',1arug&r, des in Johnstown, .. tild have p1 i1 :U1_a r]s'. r lever ht. knnti Ic& c rrt'thc •m th rti raised in this, I i ruii. `I" ' 17istrirt.ty anaf :T is IncatL° i ap raximuielx 22.4 mile:; from the Couil. ctU C.:An:m n Ple,n s epi Allegheny C,athriy, mid iii kieritcd apptoximatcly 1116 milc5 from the Cort of Comi]]ol] ] ]s as' tiJ Cainbolank. County. afli n1 undu pcii it'S, of Ilcijury that: the torcvirLL 1 -ml `• sad vorn_i`.t to the hest •u I my kniti4'r Ied1;; information, tind belted, 1 .c -1---/-"t;?' Sharon Kiehl r -` Date CERTIFICATE OF SERVICE I hereby certify on this 25' day of July, 2014 I served a copy of the foregoing Petition to Transfer Venue on the Grounds of Forum Non Conveniens via email and regular mail upon the following: Stephen Moniak Todd J. Schill One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Christine T. E zer o7 HEARING INSTRUMENTS, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2014-01871 CIVIL TEII vs. nw rn KELLIE TANKERSLEY, IN EQUITY cnb Defendant. PRELIMINARY OBJECTIONS pc -4 _' c W. .t Defendant, Kellie Tankersley, by undersigned counsel, files these Preliminary Objections, and in support states as follows: 1. This is an action for alleged breach of contract, breach of fiduciary duty, violation of the Pennsylvania Uniform Trade Secrets Act, tortious interference with current and prospective business relationships, and unfair competition. Plaintiff, Hearing Instruments, Inc., attempts to claim its former employee, Defendant Kellie Tankersley, breached various duties as a result of becoming employed by an alleged competitor and by retaining alleged confidential documents. 2. For the reasons set forth below, Plaintiff has failed to state claims for which relief can be granted, and/or has failed to plead its claims with sufficient specificity. PRELIMINARY OBJECTION NO. 1: COUNT I PA. R. CIV. P. 1028(a)(4)(DEMURRER) LACK OF CONSIDERATION 3. Count I of the Complaint alleges breach of a covenant not to compete in an Employment Agreement ("Agreement"). The Agreement provides, in relevant part, that Tankersley shall not have any business relationship with "any business which is the same or substantially similar to the Company's business ... and which is located within the non-exclusive area served by Employee or within a radius of 20 miles thereof." 1 4. The Complaint admits that the initial location specified in the Agreement was Greensburg, Pennsylvania. (Complaint ¶13). 5. The Complaint further alleges that Tankersley also worked in Aliquippa, Pennsylvania at some unspecified time. (Complaint ¶14). 6. The Complaint alleges that Tankersley breached the Agreement by working at 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237, and that location is within twenty (20) miles of the Aliquippa location she served during her employment with Plaintiff. (Complaint ¶17). 7. The Court can take judicial notice of the fact that Greensburg is not within 20 miles of 289 Mount Nebo Pointe Drive, Pittsburgh, PA 15237. 8. Although the Agreement purports to cover all areas in which Tankersley works at any time during her employment, the face of the Complaint demonstrates that the only specific location contemplated by the parties at the time of the Agreement was Greensburg. 9. Plaintiff has not pled that it offered independent consideration to Tankersley in exchange for an agreement not to work within 20 miles of Aliquippa. 10. Because independent consideration is required for a non -compete agreement entered post -employment to be enforceable, Plaintiff has not stated a legally sufficient claim for breach of contract. PRELIMINARY OBJECTION NO. 2: COUNT II PA. R. CIV. P. 1028(a)(4)(DEMURRER) FAILURE TO ALLEGE BREACH OF FIDUCIARY DUTY WHILE EMPLOYED 11. Count II alleges Tankersley engaged in unspecified actions "as set forth above" which constituted "a breach of her fiduciary duty and obligation to Hearing Instruments arising from her confidential relationship with Hearing Instruments." (Complaint ¶39). 2 12. A fiduciary duty only exists between an employee and employer while the employee is employed. 13. Plaintiff has not alleged that Tankersley engaged in any wrongful conduct while employed. Instead, it appears Plaintiff claims Tankersley breached fiduciary duties by competing with Plaintiff, and/or by using Plaintiffs confidential documents, after she left Plaintiff's employ. Thus, Plaintiff's claim for breach of fiduciary duty is legally insufficient. PRELIMINARY OBJECTION NO. 3: COUNT V PA. R. CIV. P. 1028(a)(4)(DEMURRER) PREEMPTION BY UNIFORM TRADE SECRETS ACT 14. In Count V, Plaintiff claims that by engaging in unspecified "aforementioned conduct," Tankersley engaged in unfair competition with Plaintiff. 15. Plaintiff s claims for unfair competition appear to arise out of the same conduct as Count III, its claim under the Pennsylvania Uniform Trade Secrets Act, 12 Pa. C.S. § 5301 et. seq. 16. Thus, Plaintiffs claim for misappropriation is preempted by 12 Pa. C.S. § 5308, and the claim is legally sufficient. PRELIMINARY OBJECTION NO. 3(A): COUNT V PA. R. CIV. P. 1028(a)(3) INSUFFICIENT SPECIFICITY 17. In the alternative, to the extent Count V does not arise out of the same conduct as Count III, Count V is insufficiently specific for Defendant to form an adequate response. PRELIMINARY OBJECTION NO. 4: COUNTS II THROUGH V PA. R. CIV. P. 1028(a)(4)(DEMURRER) FAILURE TO ALLEGE ACTUAL DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION 18. Count II (Breach of Fiduciary Duty); Count III (Violation of Pennsylvania Uniform 3 Trade Secrets Act); Count IV (Tortious Interference with Current and Prospective Business Relationships); and Count V (Unfair Competition) all rest on Plaintiffs allegation that "it is believed, and therefore averred that Tankersley is now making use of [Plaintiff's] confidential and proprietary information to further the interests of [her new employer] Liberty." 19. However, Plaintiff has not alleged that Tankersley is actually using any of Plaintiff s confidential or proprietary information to further her new employer's interests. It merely claims it "believes" Tankersley is doing so, without pleading any factual basis for that belief. 20. Because a mere statement of "belief' is not legally sufficient to state a cause of action, Counts II through V do not state causes of action upon which relief can be granted. PRELIMINARY OBJECTION NO. 5: ALL COUNTS/PRAYER FOR RELIEF PA. R. CIV. P. 1028(a)(3),1019(1) FAILURE TO SPECIFICALLY PLEAD SPECIAL DAMAGES 21. In its prayer for relief, Plaintiff simply requests "direct, consequential, compensatory, incidental, liquidated, and special damages" without identifying the amount, or even the nature, or those damages. 22. The damages alleged by Plaintiff are not of the type that would naturally result from Tankersley's alleged conduct. Thus, the requested damages are "special" rather than "general." Plaintiff has failed to specifically plead special damages as required by Pa. R. Civ. P. 1019(f). PRELIMINARY OBJECTION NO. 6: COUNTS I, II, IV, V/PRAYER FOR RELIEF PA. R. CIV. P. 1028(a)(4)(DEMURRER) FAILURE TO PLEAD A BASIS FOR AN AWARD OF ATTORNEY'S FEES 23. In its prayer for relief, Plaintiff also requests attorney's fees. 24. There is no legal basis to award attorney's fees under the theories raised in Counts I, II, IV, and V. As such, the prayer for attorneys' fees should be stricken except as to Count III. 4 WHEREFORE, Defendant, Kellie Tankersley, respectfully requests that these Preliminary Objections be sustained, and that Plaintiff's claims be dismissed. Respectfully submitted, Samuel J. Cordes & Associates Samuel J. Cordes Christine T. Elzer Pa. LD. No. 54874 (Cordes) Pa. LD. No. 208157 (Elzer) 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Defendant 5 CERTIFICATE OF SERVICE I hereby certify on this 24th day of July, 2014 I served a copy of the foregoing Preliminary Objections via email and regular mail upon the following: Todd J. Schill Stephen Moniak One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Christine T. Elzer CA) ftU PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Hearing Instruments, Inc. vs. Kelley Tankersley No. 1871 t'» 2014 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's preliminary objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Todd J. Schill, Rhoads & Sinon LLP (Name and Address) One South Market Square, 12th Floor, PO BOX 1146, Harrisburg, PA 17108 (b) for defendants: Christine T. Elzer, Samuel J. Cordes & Associates (Name and Address) 245 Fort Pitt Blvd., Pittsburgh, PA 15222 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 26, 2014 Date: 7/9(4) f LL Print your name Defendant, Kellie Tankersley Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 41q. 15 PIN n`rr/ Iios'7 o50907a HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant Countp of Cumberianb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-01871 CIVIL TERM IN EQUITY IN RE: DEFENDANT'S PETITION TO TRANSFER VENUE ON THE GROUNDS OF FORUM NON CONVENIENS ORDER OF COURT AND NOW, thisS\lday of July 2014, upon consideration of the Defendant's Petition to Transfer Venue on the Grounds of Forum Non Conveniens, a RULE is issued upon Plaintiff to show cause why the relief requested should not be granted. DEFENDANT shall effectuate service of this Order of Court upon Plaintiff and shall file proof of service. RULE RETURNABLE twenty (20) days from the date of service. BY THE COURT, Distribution List: ..-Todd J. Shill, Esq. Christine T. Elzer, Esq. ept is ri tELL I/30y Thomas A. Placey C.P.J. C) -0 3- raC cn u HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant QI•onntp of Qtumber[nnb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-01871 CIVIL TERM IN EQUITY IN RE: GENERAL CONTINUANCE PENDING DECISION ON PETITION TO TRANSFER VENUE ORDER OF COURT AND NOW, this 1st day of August 2014, acknowledging that a Petition to Transfer Venue has been filed, a Rule returnable issued on that Petition, the court will continue the case generally until a decision is on the Petition before further addressing the merits of this case. The hearing scheduled for 4 August 2014 at 9:00 a.m. is hereby continued generally. Dystribution List: odd J. Shill, Esq. ./Ehristine T. Elzer, Esq. t el/V/Y =41 Thomas A. Placey C.P.J. 100 700 HEARING INSTRUMENTS, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2014-01871 CIVIL TERM vs. KELLIE TANKERSLEY, IN EQUITY Defendant. CERTIFICATE OF SERVICE I hereby certify on this 5th day of August, 2014 I served a copy of Judge Placey's July 31, 2014 Order of Court upon Plaintiff's Counsel via regular mail, postage prepaid at the following address: Todd J. Schill Stephen Moniak One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 _c , nfW c Respectfully submitted, ‹ cp Samuel J. Cordes & Associa1` ;71 CO /-��VjI '""C _"p V `A Samue J. Cordes Christine T. Elzer Pa. I.D. No. 54874 (Cordes) Pa.I.D. No. 208157 (Elzer) 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Defendant Todd J. Shill, Esquire Attorney ID No. 69225 Stephen Moniak, Esquire Attorney ID No. 80035 RHOADS & SINON LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: tshill@rhoads-sinon.com smoniak@rhoads-sinon.com Attorneys for Plaintiff HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant ) ) ) ) ) ) ) ) NO.2014-01871 ) ) ) FILEO-'OFFICE OF THE PR'OTHONOTAIVY 2OR AUG 18 P11 3:81 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA IN EQUITY PLAINTIFF HEARING INSTRUMENTS' INC.'S ANSWER TO DEFENDANT'S PETITION TO TRANSFER VENUE ON THE GROUNDS OF FORUM NON CONVENIENS Plaintiff, Hearing Instruments, Inc. ("Hearing Instruments" or "Plaintiff'), by and through its counsel, Rhoads & Sinon LLP, files the within Answer to Defendant Kellie Tankersley's ("Defendant" or "Tankersley") Petition to Transfer Venue on the Grounds of Forum Non Conveniens, as follows: 1. Denied as stated. By way of further response, Hearing Instruments' Complaint, filed on June 26, 2014, is a written document that speaks for itself, and any characterization as to the nature, contents and merits thereof by Defendant is specifically denied. 2. Admitted in part and denied in part. It is admitted only that that Defendant has accurately quoted Pa. R. C. P. 1006(d)(1). It is specifically denied that transfer of venue to Allegheny County pursuant to Rule 1006(d)(1) is appropriate because Defendant is unable to 959488.2 prove that Plaintiffs selected forum for this action is vexatious or oppressive to her. By way of further response, "when dealing with a petition for transfer of venue pursuant to Rule 1006(d)(1), a trial court, given the required deference to the plaintiff's choice of forum, is faced with the question of whether a transfer of venue of an action appropriately filed in that forum, to another appropriate court in county of this Commonwealth is necessary for the convenience of the parties and the witnesses." Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 212, 701 A.2d 156, 161 (1997) (emphasis added). In order to meet this significant burden, the Defendant must show that "the plaintiff's choice of forum is vexatious to [her] by establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff [itself]," or the Defendant must establish "that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of the premises involved in the dispute." Id. at 213, 162 (emphasis added). It is clear that the Defendant "must show more than that the chosen forum is merely inconvenient to [her]." Id. A. The Action Could Have Been Brought in Allegheny County. 3. Admitted based upon Defendant's Affidavit. 4. Admitted based upon Defendant's Affidavit. 5. Admitted. 6. Admitted. By way of further response, Plaintiffs Complaint is a written document that speaks for itself, and any characterization thereof by Defendant is specifically denied. Further, Plaintiff alleges that Defendant learned and obtained Plaintiffs trade secrets and confidential information in Cumberland County, which she has disclosed or will disclose in violation of her Employment Agreement and applicable law. 2 7. Denied as stated. By way of further response, Plaintiff's Complaint is a written document that speaks for itself, and any characterization thereof by Defendant is specifically denied. Further, Plaintiff alleges that Defendant learned and obtained Plaintiff's trade secrets and confidential information in Cumberland County, which she has disclosed or will disclose in violation of her Employment Agreement and applicable law. 8. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. Further, Plaintiff alleges that Defendant learned and obtained Plaintiff's trade secrets and confidential information in Cumberland County, which she has disclosed or will disclose in violation of her Employment Agreement and applicable law. By way of further response, Plaintiff's Complaint is a written document that speaks for itself, and any characterization thereof by Defendant is specifically denied. 9. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, Plaintiffs Complaint is a written document that speaks for itself. It is clear that venue properly lies in Cumberland County due to Defendant's execution of her Employment Agreement and the extensive corporate training she received at Hearing Instruments' headquarters located in Cumberland County, at which time she learned Plaintiff's trade secrets and confidential information. (Complaint ¶ 9.) Moreover, Pennsylvania courts have repeatedly held that "claims by a defendant that 'no significant aspect of a case involves the chosen forum, and that litigating in another forum would be more convenient' is not the type of record evidence that proves litigating the case in the chosen forum is `oppressive or vexatious.'" 3 Cooper v. Nationwide Mut. Ins. Co., 761 A.2d 162, 165 (Pa. Super. 2000) (quoting Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1, 3 (Pa. Super. 2000)). 10. Admitted. By way of further response, Plaintiff's Response to Defendant's Motion to Continue Hearing and to Stay Discovery Pending Determination of Venue is a written document that speaks for itself, and any characterization thereof by Defendant is denied. 11. Denied. To the contrary, Plaintiff's claims arise, in part, from the trade secrets and confidential information she learned in Camp Hill, Cumberland County. By way of further response, Plaintiffs Complaint alleges that Tankersley, at the time she executed her Employment Agreement and received corporate training, acknowledged that she would gain access to confidential and proprietary information that was only to be used within the scope of her employment with Hearing Instruments. (Complaint ¶¶ 9-11.) Moreover, Pennsylvania courts have repeatedly held that "claims by a defendant that 'no significant aspect of a case involves the chosen forum, and that litigating in another forum would be more convenient' is not the type of record evidence that proves litigating the case in the chosen forum is `oppressive or vexatious.' Cooper v. Nationwide Mut. Ins. Co., 761 A.2d 162, 165 (Pa. Super. 2000) (quoting Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1, 3 (Pa. Super. 2000)). 12. Denied. To the contrary, all claims originate from the information Defendant learned in corporate training conducted in Camp Hill, Cumberland County. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way 13. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, in applying Rule 1006(d), this Court "must give deference 4 to the plaintiffs choice of forum in ruling on a petition to transfer venue." Bratic v. Rubendall, 43 A.3d 497, 500 (Pa. Super. 2012). Plaintiff chose to file this action in Cumberland County, which is a proper forum, and the fact that this action could have been brought in Allegheny County is not controlling or determinative. Rather, Defendant must meet the burden set forth in Cheeseman, supra, of demonstrating, with detailed information of record, that Plaintiff's chosen forum is vexatious or oppressive and not merely inconvenient to her, which burden Defendant has failed to satisfy. 14. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, Plaintiff incorporates by reference its answer to Paragraph 13. 15. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, Plaintiff incorporates by reference its answer to Paragraph 13. B. Venue Should be Transferred to Prevent Oppression to Tankersley and Other Witnesses. 16. Admitted, based upon Tankersley's Affdiavit. 17. Admitted, based upon Tankersley's Affidavit. 18. Admitted in part and denied in part. It is admitted that Tankersley's deposition has been re -noticed for July 28, 2014 in order to accommodate defense counsel's scheduling request. To the extent Defendant implies she has a right to a telephone or video deposition, that allegation is denied. Plaintiff has a right to depose Tankersley in person to assess her credibility as a witness and present her with exhibits and other documents during the course of the 5 deposition. Plaintiff also has the right to receive the documents requested in the Deposition Notice from Defendant at the deposition and to question her about said documents. The Pennsylvania Rules of Civil Procedure require Plaintiff's counsel agreement to conduct this key deposition via telephone or video conference, and Plaintiff does not agree. 19. Denied. While it may be inconvenient for Defendant to appear in Cumberland County, Defendant has failed to prove that Cumberland County is a vexatious or oppressive forum. 20. Denied. Any alleged inconvenience of Tankersley's counsel is not a relevant consideration in this matter. 21. Denied. Tankersley would not be required to attend any depositions other than her own. 22. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. 23„ After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. By way of further response, the averments in this paragraph amount to nothing more than a demonstration of Defendant's mere inconvenience in traveling to this forum. To avoid such inconvenience, Defendant could carpool with her counsel to any required appearances. If venue is transferred to Allegheny County, Hearing Instruments' witnesses and counsel would bear the same inconvenience and expense necessitated by such travel. 24. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same 6 are denied. By way of further response, the averments in this paragraph amount to nothing more than a demonstration of Defendant's mere inconvenience in traveling to this forum. To avoid such inconvenience, Defendant could carpool with her counsel to any required appearances. If venue is transferred to Allegheny County, Hearing Instrument's witnesses and counsel would bear the same inconvenience and expense necessitated by such travel. 25. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. By way of further response, the averments in this paragraph amount to nothing more than a demonstration of Defendant's mere inconvenience in traveling to this forum. To avoid such inconvenience, Defendant could carpool with her counsel to any required appearances. Further, expenses that Defendant's counsel may or may not incur are irrelevant. If venue is transferred to Allegheny County, Hearing Instrument's witnesses and counsel would bear the same inconvenience and expense necessitated by such travel. 26. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. There are alternative routes that do not require the payment of tolls. By way of further response, the averments in this paragraph amount to nothing more than a demonstration of Defendant's mere inconvenience in traveling to this forum. To avoid such inconvenience, Defendant could carpool with her counsel to any required appearances. Further, expenses that Defendant's counsel may or may not incur are irrelevant. If venue is transferred to Allegheny County, Hearing Instrument's witnesses and counsel would bear the same inconvenience and expense necessitated by such travel. 27. Admitted based upon information and belief. 7 28. Admitted based upon information and belief. 29. Denied as stated. At this point, it is not possible to accurately estimate the number of trips Defendant will be required to make to this forum during this case. Moreover, such travel is at most, merely inconvenient to Defendant and fails to meet the high standard for transfer of venue based on the grounds of forum non conveniens. 30. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. By way of further response, the inconvenience of Defendant's counsel is not a relevant consideration in this matter. 31. Denied as stated. By way of further response, in Stoner v. Penn Kleen, Inc., 59 A.3d 612, 615 (Pa. Super. 2012), the court granted the petition to transfer venue based upon the defendant's allegation of facts establishing that venue in Philadelphia would have been oppressive and vexatious to itself and its essential witnesses at trial. Specifically, the defendant, Penn Kleen, averred that all fact witnesses were located in Adams County, where the accident occurred, and that all of its employees reside in York County. Id. Penn Kleen also submitted an affidavit from its president, who stated that a trial in Philadelphia County would cause him to shut down the business during trial, resulting in a loss of income. Id. The court took into consideration the affidavits of Penn Kleen employees who determined that travel to Philadelphia would involve at least 200 roundtrip miles and other costs; however, the cost of travel was not the determinative factor. See id. It is well-established that there is "a vast difference between a finding of inconvenience and one of oppressiveness." Hoose, 754 A.2d at 5. Here, Defendant has provided no valid basis to support a conclusion that Hearing Instruments is seeking to try this action in Cumberland County in an effort to harass or inconvenience her. Rather, Hearing 8 Instruments, a resident of this forum, chose to try this action in a county which is a suitable forum. In accordance with the general principle, Plaintiff's choice of forum should "rarely be disturbed" by the grant of a petition under Rule 1006(d)(1). Cheeseman, 701 A.2d at 162. 32. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, Plaintiff incorporates by reference its answer to Paragraph 31. 33. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. By way of further response, Defendant's arrangement with counsel for the payment of fees in this matter is irrelevant to the consideration of whether the forum is vexatious or oppressive. Litigation in any forum will result in expense to the Defendant. 34. After reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. By way of further response, Defendant's arrangement with counsel for the payment of fees in this matter is irrelevant to the consideration of whether the forum is vexatious or oppressive. Litigation in any forum will result in expense to the Defendant. Moreover, it seems reasonable to assume that Defendant and her counsel could work out a mutually agreeable arrangement to travel to any necessary court appearances together, thereby eliminating any duplicative expenses for tolls, gas, and mileage. 35. Denied. By way of further response, the ability or position of Plaintiff to bear the expenses associated with litigation is completely irrelevant to this issue. In ruling on petition to transfer venue, the court must give deference to the plaintiff's choice of forum. Cheeseman, 701 9 A.2d at 162. A petition to transfer venue "should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant." Id. This standard does not require the court to take into consideration the ability of the Plaintiff to prosecute this action in an alternative venue. 36. Denied. It is denied that Defendant is a "hapless citizen" insofar as she chose to violate her Employment Agreement. As to whether Liberty will compensate Defendant for travel time, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. 2. Other witnesses will incur additional expenses if required to travel to this forum. 37. Denied as stated. At this point in time, the parties have not conducted any discovery or identified any potential witnesses in this matter, so it is improper to assume that "all witnesses" other than Plaintiffs President reside outside of Cumberland County. By way of further response, "the location and convenience of the Plaintiffs witnesses is generally immaterial to the central question of whether the forum is oppressive to the defendant." Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1264 (Pa. Super. 2004). 38. Denied as stated. Hearing Instruments' Complaint is a written document that speaks for itself, and any characterization as to the nature, contents and merits thereof by Defendant is specifically denied. By way of further response, the Complaint further alleges the following with respect to Tankersley's use of Hearing Instruments' confidential and proprietary information, which she gained during her training at Hearing Instruments' headquarters in Cumberland County (Complaint ¶ 9): 10 19. During the course of her employment with Hearing Instruments, Tankersley became familiar with confidential and proprietary information concerning, inter alia, sales methods and techniques, marketing and sales information and data, equipment costs and expenses and customer lists for both current and prospective customers. 20. Indeed, Hearing Instruments invested substantial time, money and resources in training and educating Tankersley with regard to its unique sales methods and techniques. 21. It is believed, and therefore averred that Tankersley is now making use of such confidential and proprietary information to further the business interests of Liberty in clear violation of the terms of her Employment Agreement with Hearing Instruments. (Complaint ¶¶ 19-21.) 39. Denied as stated. By way of further response, Hearing Instruments' Complaint is a written document that speaks for itself, and any characterization as to the nature, contents and merits thereof by Defendant is specifically denied. Paragraph 14 of the Complaint alleges that Tankersley was "assigned to and worked at the following locations: Greensburg, Pennsylvania and Aliquippa, Pennsylvania." (Complaint ¶ 14.) 40. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, Hearing Instruments' Complaint is a written document that speaks for itself, and any characterization as to the nature, contents and merits thereof by Defendant is specifically denied. Further, Plaintiff alleges that Defendant learned and obtained Plaintiff's trade secrets and confidential information in Cumberland County, which she has disclosed or will disclose in violation of her Employment Agreement and applicable law. 11 41. Admitted, upon information and belief. However, the distance of these counties from Plaintiff's chosen forum is irrelevant to demonstrate how this forum is vexatious or oppressive to Defendant. 42. Denied as stated. At this point in time, the parties have not conducted any discovery or identified any potential witnesses in this matter. 43. Denied as stated. By way of further response, Hearing Instruments' Complaint is a written document that speaks for itself, and any characterization as to the nature, contents and merits thereof by Defendant is specifically denied. Despite Defendant's narrow reading of the Complaint, Hearing Instruments' Complaint is not limited to Tankersley's breach of her Employment Agreement by working for her new employer in Allegheny County in violation of the restrictive covenant contained therein, but also includes claims against Tankersley arising out of her use of Hearing Instruments' confidential and proprietary information to the advantage of Hearing Lab Technology, LLC and the detriment of Hearing Instruments, which is not subject to any geographical or time restrictions. (See Sycle Confident Agreement (Ex. A to Complaint)). 44. Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. 45. Denied as stated. At this point in time, the parties have not conducted any discovery or identified any potential witnesses in this matter. 46. Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. By way of further response, according to her Affidavit, Ms. Kidd resides in Rogers, Arkansas, and Tankersley's district manager, who is identified as having knowledge resides in Johnstown, Pennsylvania, which is approximately halfway in between Allegheny and Cumberland Counties. The fact that 12 these potential witnesses do not reside in or near Cumberland County does not establish, as a matter of law, that it would be oppressive to require them to travel to Cumberland County if necessary to testify in this matter. 47. Denied as stated. Defendant has not presented any detailed information regarding the alleged expense to be incurred by the individuals she has identified as potential witnesses in this matter. Moreover, the fact that travel expenses are often an unavoidable cost of litigation does not make Plaintiffs chosen forum oppressive or vexatious. These alleged witnesses would have to incur travel expenses regardless of whether this case is heard in Cumberland or Allegheny County. 48. Admitted, based upon the Affidavit submitted by Ms. Kidd. 49. Admitted, based upon the Affidavit submitted by Ms. Kidd. 50. Admitted, based solely upon the affidavit submitted by Ms. Kidd. By way of further response, the parties have not conducted any discovery or identified any potential witnesses in this matter. 51. Denied. The Affidavit of Ms. Kidd only vaguely states that the District Manager resides in Johnstown, Pennsylvania without providing this person's name or address. Therefore, after reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. 52. Denied. The Affidavit of Ms. Kidd only vaguely states that the District Manager resides in Johnstown, Pennsylvania without providing this person's name or address. Therefore, after reasonable investigation, Hearing Instruments is without sufficient knowledge or information to admit or deny the averments in this paragraph, and hence the same are denied. 13 53. Denied. Ms. Kidd's Affidavit provides no specific factual support for her "belief' that travel to Cumberland County would be more burdensome or expensive than travel to Allegheny County. As an out-of-state witness, she would have to incur travel expenses regardless of whether this case is heard in Cumberland or Allegheny County. 54. Denied. Ms. Kidd's Affidavit provides no specific factual support for her "belief' that travel to Cumberland County would be more burdensome or expensive than travel to Allegheny County. By way of further response, Ms. Kidd is "the Senior Vice President of Hearing Lab Technology, LLC who will undoubtedly be fully compensated by her employer for her time and expenses associated with testifying in this matter. Such cost is nothing more than a normal and often unavoidable expense of litigation. See Walls v. Phoenix Ins. Co., 979 A.2d 847, 853 (Pa. Super. 2009). 55. Denied. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent the averment is deemed factual, the averment is specifically denied. By way of further response, Hearing Instruments specifically denies that Defendant has met the significant burden of demonstrating, with detailed information, that the forum chosen by Hearing Instruments is oppressive and not merely inconvenient. 56. Admitted. 14 WHEREFORE, Plaintiff, Hearing Instruments, Inc., respectfully requests that this Court deny Defendant Kellie Tankersley's Petition for Transfer of Venue on the Grounds of Forum Non Conveniens. RHOADS & SINON LLP By: odd J. Shill Stephen Moniak One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Plaintiff 15 CERTIFICATE OF SERVICE >14 I hereby certify that on this /� day of August, 2014, a true and correct copy of the foregoing Plaintiff's Answer to Petition to Transfer Venue on the Grounds of Form Non Conveniens was served by means of United States mail, first class, postage prepaid, upon the following: Christine T. Elzer, Esq. Samuel J. Cordes & Associates 245 Fort Pitt Boulevard Pittsburgh, PA 15222 Attorneys for Defendant Teresa H. Laughead HEARING INSTRUMENTS, INC., Plaintiff v. KELLIE TANKERSLEY, Defendant Count? of Cumberbob IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-01871 CIVIL TERM IN EQUITY IN RE: PLAINTIFF HEARING INSTRUMENTS' [SIC] INC.'S ANSWER TO DEFENDANT'S PETITION TO TRANSFER VENUE ON THE GROUNDS OF FORUM NON CONVENIENS 4„ ORDER OF COURT AND NOW, this day of August 2014, upon consideration of the Plaintiff Hearings Instruments' [sic] Inc.'s Answer to Defendant's Petition to Transfer Venue on the Grounds of Forum Non Conveniens, Defendant's Petition to Transfer Venue is GRANTED. Venue is hereby transferred to Allegheny County. When addressing a petition to transfer venue pursuant to Pa.R.C.P. 1006(d)(1), after giving the required deference to the plaintiff's choice of forum, a trial court "is faced with the question of whether a transfer of venue of an action, appropriately filed with that forum, to another appropriate court in a county of this Commonwealth is necessary for the convenience of parties and witnesses." Cheeseman v. Lethal Exterminator, 701 A.2d 156, 161 (Pa. 1997). A petition to transfer venue should not be granted unless it is shown that the plaintiff's chosen forum is oppressive or vexatious to the defendant. Id. at 162. To meet this burden, a defendant may show a forum is oppressive; "for instance, that trial in another county would provide easier access to witnesses or other sources of proof ...." Id. Here, Defendant has shown that this action could have originally been brought in Allegheny County. Defendant has demonstrated that Cumberland County is an oppressive forum for Defendant. As in Stoner v. Penn Kleen, Inc., 59 A.3d 612 (Pa. Super. 2012), Defendant has shown that venue in Cumberland County is not merely inconvenient to herself and her witnesses, but is also a substantial burden. In Stoner, it was found that Philadelphia was an oppressive and vexatious venue, and the trial court transferred venue to Adams County. Id. at 615-16. The trial court considered that witnesses would need to travel three -and -a -half hours with at least 200 roundtrip miles, and such travel would impose significant costs including tolls.' Id. at 615. Here, Defendant and all of her witnesses in Allegheny County would have to travel approximately 400 miles and six -and -a -half hours roundtrip with significant costs for gas, tolls, and vehicle wear -and -tear. Similiarly, in Borger v. Murphy, 797 A.3d 309, 312-13 (Pa. Super. 2002), transferring venue from Philadelphia to Lehigh County was found to be proper when the defendant stated venue in Philadelphia would be a hardship on his work, and he would have to travel eighty miles each way2 for a commute of an hour and a half; the 1 It recognized that the roundtrip distance between Cumberland County and Allegheny County is over one hundred miles longer than the roundtrip distance between Philadelphia and Gettysburg, the Adams County seat. 2 Again, it is noted that Defendant resides 194 miles from Carlisle, the Cumberland County seat, which is significantly further than the eighty miles at issue in Borger, supra. {, ) defendant also stated that many of his potential witnesses were in or near Lehigh County. Distribution List: ..� Todd J. Shill, Esq. Christine T. Elzer, Esq C p eS rta:/eta lb/ BY THE COURT, Thomas . Placey C.P.J.