HomeMy WebLinkAbout01-5209In the Court of Common Pleas
Cumberland County, Pennsylvania
JFC Personnel, Inc.,
d/b/a JFC Personnel Agency
Plaintiff
Civil Action-Equity
V.
Civil Division
Brian A. Leach, No. o/- .~-..z O '~ ~ "7""~,-
Defendant
To: Brian A. Leach
NOTICE TO DEFEND
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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
717-249-3166
In the Court of Common Pleas
Cumberland County, Pennsylvania
JFC Personnel, Inc.,
d/b/a JFC Personnel Agency
Brian A. Leach,
Plaintiff
Defendant
Civil Action-Equity
Civil Division
No. o/-5'2, o~ ~
COMPLAINT
AND NOW, comes the Plaintiff, JFC Personnel, Inc. (d/b/a JFC Personnel
Agency) by its legal counsel, Keefer, Wood, Allen & Rahal, LLP, and pleads the
following Complaint:
The Plaintiff, JFC Personnel, Inc. (herein "JFC"), is a Pennsylvania corporation,
with a business office located at 1520 Market Street, Camp Hill, Cumberland
County, Pennsylvania (herein the "Camp Hill Office").
The Defendant, Brian A. Leach (herein "Leach"), is an adult-individual residing at
30 Round Top Lane, Gettysburg, Adams County, Pennsylvania.
Leach is a current JFC employee.
JFC has offices in Carlisle, Chambersburg, York, Lancaster, and Harrisburg,
Pennsylvania and in Gainesville, Florida.
JFC's business is nationwide in scope.
JFC offers, among other things, staffing services to employers for permanent job
openings.
On October 22, 1990, as a condition of employment by JFC Leach entered into a
written contract which set forth a restrictive covenant (herein the "Restrictive
Covenant"). A true and correct copy of this written contract is attached hereto as
Exhibit "A" and made a part hereof as though fully set forth herein.
10.
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The Restrictive Covenant was a condition of Leach's employment with JFC.
After the signing of the contract, Leach was employed as a executive recruiter for
JFC's Camp Hill office.
Leach currently works for JFC on Monday and Thursday in JFC's Camp Hill.
Leach currently works for JFC from his residence in Gettysburg, Pennsylvania on
Tuesday, Wednesday and Friday.
At all relevant times hereto, Leach's job duties, included among other things,
recruiting employers to use JFC's staffing services for full-time employees and
recruiting employees to fill these positions.
JFC earns a placement fee from employers when it successfully places a
candidate with the employer.
Leach is paid by commissions earned by his efforts to place employee
candidates with employers on behalf of JFC, and he receives medical benefits, a
telephone line, and office supplies for his home office.
Leach developed his base of employer clients as a result of JFC's marketing
efforts and reputation.
Many of Leach's current employer clients were serviced by JFC prior to Leach's
employment with JFC.
On average for the last three calendar years, Leach has generated
approximately twenty-five percent (25%) of JFC's total revenue.
The Restrictive Covenant recognizes in Paragraph 2 that JFC, in employing
Leach, would:
(1) expend considerable time, effort and expense in training Leach in the
methods used by JFC;
(2) share with Leach confidential business information and information
concerning the methods, forms, and contracts used by JFC;
(3) provide Leach such experience that upon leaving JFC and engaging in
a competing business would lead to irreparable harm and financial loss to
JFC.
At all relevant times hereto, JFC did in fact:
(1) expend considerable time, effort and expense in training Leach in the
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methods used by JFC;
(2) share with Leach confidential business information and information
concerning the methods, forms, and contracts used by JFC;
(3) provide Leach such experience that upon leaving JFC and engaging in
a competing business he could irreparably harm and cause financial loss
to JFC.
Since at least June of this year and without the knowledge or consent of JFC,
Leach has used his home office in Gettysburg to establish a competing staffing
services company which would directly compete with JFC.
During this same time, Leach was an employee of JFC.
It is believed and therefore averred that Leach's competing company is named
Recruiters Consulting International ("RCI").
It is believed and therefore averred that the Internal Revenue Service has
assigned RCI an employer identification number.
Without the knowledge or consent of JFC, it is believed and therefore averred
that Leach anticipates using JFC employees to find appropriate candidates to fill
the staffing needs of Leach's competing company.
Without the knowledge or consent of JFC, it is believed and therefore averred
that Leach has been using JFC resources to direct perspective and existing JFC
clients away from JFC to his competing company.
Without the knowledge or consent of JFC, Leach has attempted to recruit current
JFC employees to leave JFC to work for his competing company.
Without the knowledge or consent of JFC, Leach has used the trade secrets and
confidential information he gained as a JFC employee to establish his competing
company and will use the same to operate his competing company.
Without the knowledge or consent of JFC, it is believed and therefore averred
that Leach anticipates placing individuals who directed their resumes to JFC with
employers who have contracted with Leach's competing company.
JFC uses the web sites www. monster.co_m and www. headhunter, net to post job
listings from employer clients.
30. JFC pays a substantial fee for these internet posting privileges.
33.
34.
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36.
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32.
Without the knowledge or consent of JFC, it is believed and therefore averred
that Leach has used or intends to use JFC's posting privileges to post job listings
for employers who had contracted with Leach's competing company.
The Restrictive Covenant reads in relevant part:
EMPLOYEE [Leach], therefore, agrees that he will not while in JFC's
employ nor within a period of one (1) year following termination of
employment for any cause whatsoever, directly or indirectly engage in the
employment agency business for himself or in association with any
capacity with any other person or firm engaged in a similar business to
JFC's such as Computer Task Group, Comp-u-Staff, etc. within a seventy-
five (75) mile radius of any city in which a JFC office is located;
EMPLOYEE acknowledges that doing so in any manner would interfere
with, disturb, disrupt, decrease or otherwise jeopardize the business of
JFC and its employees; nor will EMPLOYEE do anything which tends to
take away or diminish the trade, business, or good will of JFC; nor will
EMPLOYEE give to any other person or firm the benefit or advantage of
JFC's methods or forms, or the knowledge, information, and experience
acquired by EMPLOYEE while employed for JFC.
Restrictive Covenant at Paragraph 3.
Paragraph 5 of the Restrictive Covenant provides that JFC is entitled to both
temporary and permanent injunctive relief to remedy any violations of the
restrictive covenant.
Paragraph 5 of the Restrictive Covenant provides for reasonable attorneys fees
to be paid by Leach for any violations of the Restrictive Covenant.
COUNT I
INJUNCTIVE RELIEF
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
34 above herein as though fully set forth.
The Restrictive Covenant at Paragraph 3 is reasonable as to time and
geographic area and is reasonably necessary to protect the business and good
will of JFC in its service area.
37.
JFC has no adequate remedy at law for Leach's willful violations of the
Restrictive Covenant.
38.
JFC will be irreparably harmed if the Defendant is allowed to violate the
Restrictive Covenant because the disruptive effect of Leach's competing
business on JFC's current and future employers, employee candidates and other
customer relationships is inherently unascertainable and cannot be quantified.
39.
Leach's breach of the Restrictive Covenant has already resulted in JFC's loss of
employer clients and employee candidates. It is further anticipated that JFC will
suffer the loss of additional employer clients and employee candidates, if
Leach's violations are allowed to continue.
40.
JFC cannot estimate with any degree of certainty the pecuniary loss it will suffer
as a result of Leach's willful violations of the Restrictive Covenant.
41.
JFC will lose a significant business opportunity and market advantage if Leach is
permitted to compete directly against it in violation of the Restrictive Agreement.
42.
Based on the breaches alleged in the Complaint, JFC is likely to prevail on the
merits.
43.
injunctive relief is required to prevent Leach from violating the Restrictive
Covenant and to maintain the status quo between the parties throughout the
duration of the litigation of this matter.
44.
Based on information and belief, JFC asserts that Leach is now poised to breach
the Restrictive Covenant by operating RCI as described above, if he has not
already done so. in order to prevent the immediate and irreparable harm that
JFC would suffer as a result of these improper acts, it is appropriate for this
Court to enter an order granting the injunctive relief sought by JFC.
WHEREFORE, Plaintiff JFC Personnel Inc. respectfully requests this Honorable
Court to enter an order for preliminarily and permanently enjoining Defendant Brian A.
Leach from any conduct which would constitute a violation of the Restrictive Covenant,
including but not limited to proceding with RCl or other business entities in such a
manner as to engage in the employment agency business together with reasonable
attorneys fees, costs and such other relief as this Court shall deem appropriate.
45.
COUNT II
FRAUD
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
44 above herein as though fully set forth.
46.
At all times relevant hereto, Leach's continued accepting of compensation and
employment from JFC constituted an implied representation by Leach to JFC
that he was in compliance with the terms of the Restrictive Covenant.
47.
Leach's implied representation to JFC that he was in compliance with the
Restrictive Covenant was made with the intent to induce reliance on the part of
JFC.
48.
JFC, at all times relevant hereto, justifiably relied upon the implied representation
of Leach that he was in compliance with the terms of the Restrictive Covenant
and continue to allow Leach access to confidential and proprietary information.
49.
By reason of Leach's agreement to the Restrictive Covenant, Leach was at all
times relevant hereto, under a fiduciary duty to disclose to JFC any acts on his
part which were in violation of the Restrictive Covenant.
50. Leach never disclosed any of his violations of the Restrictive Covenant to JFC.
51.
As a direct and proximate result of Leach's misrepresentations and concealment,
JFC has suffered and will suffer damages in an amount not yet quantified.
52.
Leach's acts in violation of the Restrictive Covenant were outrageous and were
undertaken with reckless disregard for the rights of JFC.
WHEREFORE, Plaintiff JFC respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant Leach in an amount to be determined after
hearing of this matter which amount exceeds the mandatory arbitration limit in
Cumberland County, together with punitive damages, reasonable attorneys fees, costs
and such other remedies as this Honorable Court shall deem appropriate.
Count III
Tortious Interference with Business Relations
53.
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
52 above herein as though fully set forth.
54.
Leach in his capacity as an executive recruiter with JFC was aware of JFC's
existing and prospective contractual relations with numerous employers and
prospective employee candidates.
55.
By reason of Leach's actions in violation of the Restrictive Covenant as set forth
above, Leach actively, intentionally and without privileges interfered with both
existing and prospective business relationships between JFC and employers and
JFC and prospective employee candidates upon whom JFC's business relies.
56.
57.
58.
59.
Leach actively recruited JFC's own employees to leave JFC and work for his
competing company.
Leach's attempted recruitment of JFC's own employees constituted an
unreasonable interference with JFC's contractual relationship with its employees.
As a direct and proximate result of Leach's tortious interference with JFC's
existing and prospective business relations, JFC has suffered and will suffer
damages in an amount not yet quantified.
Leach's acts in interfering with JFC's business relations were outrageous and
were undertaken with reckless disregard for the rights of JFC.
WHEREFORE, Plaintiff JFC respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant Leach in an amount to be determined after
hearing of this matter which amount exceeds the mandatory arbitration limit in
Cumberland County, together with punitive damages, reasonable attorneys fees, costs
and such other remedies as this Honorable Court shall deem appropriate.
Count IV
Breach of Contract
60.
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
59 above herein as though fully set forth.
61.
Leach's acts in violation of the Restrictive Covenant, as described in detail above
constitute multiple breaches of his contract with JFC.
62.
As a direct and proximate result of Leach's multiple breaches of contract, JFC
has suffered and will suffer damages in an amount not yet quantified.
WHEREFORE, Plaintiff JFC respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant Leach in an amount to be determined after
hearing of this matter which amount exceeds the mandatory arbitration limit in
Cumberland County, together with reasonable attorneys fees, costs and such other
remedies as this Honorable Court shall deem appropriate.
Count V
Conversion
63.
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
62 above herein as though fully set forth.
64. Leach used JFC resources to generate revenue for his competing company.
65. Leach's actions constitute conversion.
66.
As a direct and proximate result of Leach's conversion, JFC has suffered and will
suffer damages in an amount not yet quantified.
WHEREFORE, Plaintiff JFC respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant Leach in an amount to be determined after
hearing of this matter which amount exceeds the mandatory arbitration limit in
Cumberland County, together with punitive damages, reasonable attorneys fees, costs
and such other remedies as this Honorable Court shall deem appropriate.
Count VI
Trade Secrets
67.
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
66 above herein as though fully set forth.
68.
Leach used JFC's trade secrets such as its best practices on behalf of his
competing company.
69.
Leach has violated JFC's common law right to maintain its trade secrets for its
sole use.
70.
As a direct and proximate result of Leach's use of JFC's trade secrets on behalf
of his competing company, JFC has suffered and will suffer damages in an
amount not yet quantified.
WHEREFORE, Plaintiff JFC respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant Leach in an amount to be determined after
hearing of this matter which amount exceeds the mandatory arbitration limit in
Cumberland County, together with punitive damages, reasonable attorneys fees, costs
and such other remedies as this Honorable Court shall deem appropriate.
Count VII
Breach of Fiduciary Duty
71.
JFC hereby incorporates by reference the allegations of Paragraphs 1 through
70 above herein as though fully set forth.
72.
Leach breached his common law fiduciary duty to JFC by directly competing with
JFC, using JFC's resources to further the aims of Leach's competing company,
attempting to recruit JFC's own employees to Leach's competing company,
placing individuals who directed their resumes to JFC with Leach's competing
company, and attempting and/or servicing existing JFC clients with Leach's
competing company.
73.
As a result of these actions, Lease has failed to maintain his fiduciary duty of
loyalty to JFC and to act solely for the benefit of JFC in all matters related to
recruiting and placing employees.
74.
As a direct and proximate result of Leach's breach of fiduciary duty, JFC has
suffered and will suffer damages in an amount not yet quantified.
WHEREFORE, Plaintiff JFC respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant Leach in an amount to be determined after
hearing of this matter which amount exceeds the mandatory arbitration limit in
Cumberland County, together with punitive damages, reasonable attorneys fees, costs
and such other remedies as this Honorable Court shall deem appropriate.
KEEFER, WOOD, ALLEN & RAHAL,
LLP.
PA I.D. # 38904
Stephen L. Grose, Esquire
PA I.D. #31006
Elizabeth J. Goldstein, Esquire
PA I.D. # 73779
Attorneys for Plaintiff
415 Fallowfield Road, Suite 102
Camp Hill, PA 17011
717-612-5800
EXHIBIT "A"
JFC PER~0NNEL AGENCY of Camp Hill, Pennsylvania, herein called
JPC, on behalf of itself and Brian A. Leach, intending to be
legally bound hereby, agree as followsl
1. JFC and EMPLOYEE shall be associated as employer and
employee at a rate of compensation to be agreed upon between the
parties~ however, all bonuses, profit-sharing plans, insurance
plans or other incentives will be and remain completely at tbs
discretion of JFC.
2. EMPLOYEE acknowledges that JFC will extend considerable'
time, effort and expense in training EMPLOYEE in the methods used
by JFC and =hat EMPLOYEE will acquire confidential knowledge and
information as to JFC's accounts, customers, and business patrons,
as well as confidential knowledge and information concerning the
methods, forms, and contracts used by JFC, that EMPLOYER will
receive such experience that upon leaving JFf's employment for any
reason, his engaging d~rectly or indirectly, either alone or in
association with any other person or firm in a similar business to
that of JFC, or to that of a duly authorized licensee of JFC of
Camp Hill/Harrisburg/York/Lances=er, such engagement will present
irreparable harm and financial loss to JPC.
3, EMPLOYEE, therefore, agrees that he will na~ while in
JFC's employ nor within a period of one dl) v,ar. followina
termination of employment fou any cause whatsoever, directly or
indirectly engage in the employment agency business for himself or
in association with ?n~ ~apacit~ KiDh an~ other person or firm
engag=~ fa a similar ouslness t'o JFC's s~ch as Computer Task ~roup,'
Comp-U-Staff, etc. within s seventy-five ~l~% .miXe radius of
.city in w~.ich a JFC o~[iCe'is located; EMPLOYEE acknowledges that
doing so in any man~er'woul~ Inter'ere with, disturb, disrupt,
decrease or otherwise jeopardize the business of J~C and its
employees; nor will EMPLOY~E do anything which tends ~o take away
or diminish the trade, business, or good will of JFC~ nor will
EMPLOYEE give to any other person or firm the benefit or advantage..
of JFC's methods or forms, or the knowledge, information,
experience acquired by EMPLOYEE while employed hy J£C.
4.. EMPLOYEE agrees upon termination of his emplo~nent with
JFC for a~y reason wha=soever~ to return to Mr. carchidi, of
all records, manuals, copies of records and papers pertaining
transactions handled by EMPLOYEE while associated with ffPC~ and in
th~ event EMPLOYEE shall fail to do so, or in the evsnt EMPLOYEE
shall violate this instant agreement, EMPLOYEE s~all forfeit
claims no Unpaid commissions without affecting the right of JFC
compel the re=urn cf said records, papers, and manuals.
5. EMPLOYEE agrees that =he remedy at law of JPC violations
of the Provisions of this agreement will be inadequate and
JFC shall be en=ltled to temporary and permanent injunctive relief
aqainst such violations including the cost of reasonable attorney
~ees.
It is further understood that, in the event of term~nation of
shall be payable to EHPLOYEE other than the commissions alrea
~atd. In ~he event of termination after o-- ,-, ...... dy
hereof, EHPLOY~E _~_.. ....... ..~ t~ year ~O~ tAe Oa2e
- ~-~aa receive ofle-ha&£ of the un~a~d commiss~ons
earned by h~m, after they have been collected by ~C and
pe,.enen=~ o~ the P~--e,ent ha. b.en .--eb~iehe~ ----
Employee
P~jStdent/Owner -~ '
VERIFICATION
Steven A. Martin states subject to the penalties in 18 Pa. C.S.A. § 4904 relating
to unswom falsification to authorities that he is authorized by JFC Personnel Agency,
Inc. to make this verification, and that the facts set forth herein are true and correct to
the best of my knowledge, information and belief.
Date:
'2oo
Steven A. Martin
General Manager
In the Court of Common Pleas
Cumberland County, Pennsylvania
JFC Personnel Inc.
d/b/a JFC Personnel Agency
Plaintiff
Brian A. Leach,
Defendant
Civil Action-Equity
Civil Division
No. o/-_5',zo,2 ~..~
Petition for Special Injunction or Preliminary Injunction
AND NOW comes Plaintiff, JFC Personnel Inc. ("JFC"), by its legal counsel,
Keefer, Wood, Allen & Rahal, and respectfully petitions this Honorable Court to:
(1) issue a special or preliminary injunction enjoining Defendant Brian A.
Leach from any conduct which would constitute a violation of the
Restrictive Covenant attached to the Complaint as Exhibit "A", including
but not limited to proceeding to engage in business through Recruitement
Consulting International ("RCI") or other business entities which provide
employment agency services, together with payment of JFC's reasonable
attorneys fees for all proceedings related to the enforcement of the
Restrictive Covenant; and
(2) return all documents, resumes, manuals, client files, and all other
material owned by JFC within three days of the date of the Court's order.
In support of this Petition, JFC incorporates by reference as though fully set forth
herein the Affidavits of Stephen St. John and Steven A. Martin attached hereto as
Exhibits "A" and "B" respectively, and he transcribed oral statement of Stephen St. John
attached hereto as Exhibit "C".
JFC is prepared to post such bond or security as the Court may require.
It is further moved that thereafter, a hearing to continue the injunction be held
within five days thereof. In the alternative, JFC moves for an order establishing a
prompt hearing date for determination as to whether a preliminary injunction should
issue.
WHEREFORE, JFC Personnel Inc. respectfully requests that this Honorable
Court issue a special or preliminary injunction enjoining Defendant Brian A. Leach from
any conduct which would constitute a violation of the Restrictive Covenant, together
with payment of JFC's reasonable attorneys fees for all proceedings related to the
enforcement of the Restrictive Covenant.
Date:
KEEFER, WOOD, ALLEN & RAHAL,
LLP.
Pa. Attorney ID # 38904
Stephen L. Grose, Esquire
Pa. Attorney ID #31006
Elizabeth J. Goldstein, Esquire
PA Attorney ID # 73779
415 Fallowfield Road, Suite 102
Camp Hill, PA 17011
717-612-5800
EXHIBIT "A"
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS.
AFFIDAVIT
I, Stephen St. John, swear and affirm under penalty of perjury that the following
facts are true:
I am an adult individual residing at Orchard Hills, Apartment 109, Mifflin,
Pennsylvania;
2. I was employed by JFC as a recruiter;
3. I have been employed by JFC since February 26, 2001;
I was approached by Brian A. Leach ("Brian") on or around March or April
2001 to start an employment agency business which would directly
compete with JFC Personnel Inc. ("JFC");
Brian told me that he wanted my background for his partnership because
of the loss of revenue he would experience for the first year- losing
clients like Rite Aid, Blue Cross, etc.;
Brian invited my girlfriend and me over to this home for dinner one
evening to present the Limited Partnership idea;
At the dinner, Brian went into great detail about his financial situation and
his intent to move forward with starting a business which would directly
compete with JFC;
Brian indicated that no one at JFC markets to companies or sources
candidates like I do;
I attended a meeting with Brian and a Maryland attorney, Rosemary
McDermott, in March or April of 2001 regarding the creation of a limited
liability company which would compete directly with JFC named RCl
(Recruiters Consulting International) ("RCI");
10.
At that meeting, McDermott provided Brian with the documentation to form
RCl as a proper legal entity and to obtain an EIN number.
11.
12.
13.
14.
15,
16.
17.
18.
19.
20.
21.
Brian told me that sometime after his meeting with McDermott, Brian filed
the company entity documents in Maryland and obtained an EIN number
for RCl;
Brian told me that he fired McDermott and hired a new attorney, Leslie A.
Powell.
Brian told me that he attended a meeting with Powell.
After Powell's meeting with Brian, I received a letter from Powell. A true
and correct copy of the letter I received from Leslie A. Powell is attached
hereto as Exhibit "A";
I decided not to work with Brian in his new company;
Brian told me that he has been making marketing calls to companies on
behalf of his new entity from his residence in Gettysburg, Pennsylvania;
Brian ask me if I could find an embedded C++ programmer for a job order
for his competing company;
Brian told me that he has two phone lines in his residence in Gettysburg
and the second line which is his personal line is what he uses to make
calls on behalf of RCl;
I resigned from JFC on August 15, 2001 to accept a recruiter position in
another state and more than 75 miles from the closest JFC office;
I am leaving Mifflin, Pennsylvania and moving out of state on
August 29, 2001; and
I disclosed Brian's activities with RCl for the first time to Steve Martin,
General Manager of JFC and James Carchidi, sole owner of JFC at the
time of my resignation on August 15, 2001.
Stept~en St. Joh½
Sworn to and subscribed before
thisc~!A~h day of ~t- 2001.
NOTARIAL SEAL
_CYNTHIA J. RULE, Notary Pijb#c
uamp Hill Bore., Cumberland County
My Commission Expires Jan. 24, 2004
~ ALS~ ~N D.C,
May 29, 2001
Mr. Brian A. Leach
30 Round Top Lane
Crctlysburg, Pennsylvania 1732~
Mr, Stephen St..rohn
Orchard Hills, Apt. 109
Mifflin, Penusylvar~a 17058
Dear Bdan and Stephen:
It was a pleasure meeting with Brian on Friday regarding setting up your limited liabil/ty
company. I wanted to follow up with an engagement letter to ¢onfum my employment and fees.
I have agreed to a flat rate of $400 pl~ expenses such as long distance t~lepho~c calls, court costs,
expert witness fees, po.stage, copying etc., for preparing thc Opcraling Agreement If you wish to
engage me for other matters, my hourly rat~ is $220, and my a~sociat¢, Diana Schobcl's time is
billed at $1 ~0 pet hollr.
If these arrang~n~m ar~ acceptable to you, please sign below and return this letter along
with thc retainer check. Wkb~n two weeks after r¢cdpt of thc rctsin~r, I will provide you with a
draft agccrnent.
A copy of this letter is enclosed for your records. If you have any questions or concerns,
please call I look forward to working with you.
Sincerely,
LAP/hep
Enclosure
Agreed,and Accepted-
Mr. Brian A. Leach
Date:..
Mr. Smphea St. John
Exhibit "A" to St. John Affidavit
EXHIBIT "B'
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS.
AFFIDAVIT
I, Steve A. Martin, swear and affirm under penalty of perjury that the following
facts are true:
I am an adult individual residing at 24 Joseph Drive, Boiling Springs,
Pennsylvania.
2. I am employed by JFC as the general manager.
3. Brain A. Leach ("Leach") is a current JFC employee.
JFC has offices in Carlisle, Chambersburg, Camp Hill, York, Lancaster, and
Harrisburg, Pennsylvania and in Gainesville, Florida.
5. JFC's business is nationwide in scope.
JFC offers, among other things, staffing services to employers for permanent job
openings.
7. Leach currently works for JFC on Monday and Thursday in JFC's Camp Hill.
Leach currently works for JFC from his residence in Gettysburg, Pennsylvania on
Tuesday, Wednesday and Friday.
At all relevant times hereto, Leach's job duties, included among other things,
recruiting employers to use JFC's staffing services for full-time employees and
recruiting employees to fill these positions.
10.
JFC earns a placement fee from employers when it successfully places a
candidate with the employer.
11.
Leach is paid by commissions earned by his efforts to place employee
candidates with employers on behalf of JFC, and he receives medical insurance,
a telephone line and office supplies for his house.
12. Leach developed his base of employer clients as a result of JFC's marketing
13.
14.
~fforts ~nd reputation.
Many of Leach's current employer clients were serviced by JFC prior to Leach's
employment with JFC.
On average for the last three calendar years, Leach has generated
approximately twenty-five percent (25%) of JFC's total revenue.
Steven A. Martin
Sworn to and subscribed before
thi¢¢'~L day of ~ 2001.
EXHIBIT "C"
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5
6
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8
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COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL AGENCY, INC., :
PLAINTIFF :
VS :
BRIAI~ A. LEACH, :
DEFENDANT :
STATEMENT UNDER OATH
STATEMENT OF:
TAKEN BY:
BEFORE:
DATE:
PLACE:
STEPHEN L. ST. JOHN
PLAINTIFF
DONNA J. FOX, REPORTER
NOTARY PUBLIC
AUGUST 21, 2001, 9:40 A.M.
KEEFER, WOOD, ALLEN & R3~-LAL LLP
415 FALLOWFIELD ROAD
SUITE 102
CAMP HILL, PENNSYLVANIA
APPEARANCES:
KEEFER, WOOD, ALLEN & R3LqAL LLP
BY: STEPHEN L. GROSE, ESQUIRE
FOR - PLAINTIFF
ALSO PRESENT:
JAMES F. CARCHIDI, JR.
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FOR PLAINTIFF
Stephen L. St. John
TABLE OF CONTENTS
WITNESS
EXHIBITS
EXHIBIT NO.
A - Letter dated May 29,
Leach and St. John
B - Affidavit
2001, Powell to
EXAMINATION
PRODUCED
AND MARKED
33
59
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STEPHEN L. ST. JOHN, called as a witness,
being sworn, testified as follows:
EXAMINATION
BY MR.
Q
behalf
GROSE:
Steve, my name is Steve Grose and I'm here on
of JFC Temps. We are taking your deposition to
preserve your testimony because, as I understand it, you're
going to be leaving the area very soon and we needed to
preserve your testimony for litigation matter that has not
yet been filed but one which will be filed probably today,
which has the caption JFC personnel Agency, Inc., versus
Brian A. Leach. And that will be filed in the Court of
Common Pleas of Cumberland County.
Now, I've asked that you come in for a
deposition today to describe what you know about the
circumstances surrounding your employment relationship with
JFC and with Mr. Leach. Have you ever had a deposition
taken before?
A No, sir.
Q Basically what this is, it's a
question-and-answer type thing. I'll ask you some
questions, and I'd like you to give me your best answer if
you can. If your best answer is I don't know, then that's
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what I want you to tell me. I don't want you to guess and I
don't want you to speculate. If you're not sure what
question I'm asking you or if you don't understand a
question, just tell me and I'll try to rephrase it for you
so that you do understand it. ~.nd if you answer a question,
then I will assume that you have understood the question and
you're giving us your best answer. Is that okay?
A Yes, understood.
Q The other thing is -- and you're doing well --
you can't just nod your head. You have to say yes so that
the court reporter can take that down, yes or no, some
verbal response.
A Sounds good.
Q Would you give us your full name for the
record, please.
A Stephen Lee St. John.
Q Your present address and phone number?
A HCR 67, Box 0H109, Mifflin, Pennsylvania,
17058.
Q I understand that you are going to be moving
out of the area and that you will at some point at least let
us know of some way to contact you, either an e-mail address
or a telephone number or --
A I have an e-mail address now if you would like
it.
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Q
A
J-o-h-n at Yahoo.com.
Q Thank you.
Okay. What would that be?
Steve, S-t-e-v-e, underscore, S-t, underscore,
Now, I want to go back and get a little bit of
background information regarding when you started with JFC
and how you found out about JFC. How was it that you came
to know JFC?
A Actually, when I was looking for a job from
like December until -- I interviewed from the end of
December until the beginning of February, middle of February
sometime, until I took my position with JFC, I actually
contacted a lady by the name of Pat McClain. She works at
Center Tech and she knows I was a good recruiter and what I
did, and she said she would like to see me work at JFC and
her point of contact at JFC was Brian Leach.
On that day -- I'm not exactly sure of the
day. It was sometime I believe in January -- I contacted
Brian. I said to Brian, I told him exactly what I did, how
unique my philosophies and techniques were, and what I could
bring to JFC. He said it sounds very interesting, and he
wanted me to speak with Jim. He said Jim was out of town
and he would be back on February 16th, or whenever it was.
I'm not exactly sure of the date. He said to call back and
ask for Mr. JFC, they'll know who you want, and talk to him
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about your situation and what you can bring to the
organization.
So at that time I called back and spoke to
Jim. He called me on the same day because he was going out
of town. That's basically how it came about.
Q Just for the record, so we have some context,
when did you graduate from high school and did you go to
college?
A
1998.
Q
A
Yes. I graduated from high school in June of
Which high school?
Juniata High School. I graduated from college
in July of 2000.
Q Who did you go to work for?
A I worked for a company called Augustine,
Incorporated. They later changed their name to Townfusion.
I started work there on August 3rd of 2000. I graduated the
end of July and started work there.
Q Have you taken any other training or any other
courses after high school and working?
A As far as pertaining to like my degree or to
the recruiting industry?
Q
Your degree, yes.
No, sir.
Or the recruiting industry?
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A Oh, yes.
Q What courses did you take?
A Like tapes and reading books and stuff like
that. A lot of self-taught stuff. Seminars, stuff like
that.
Q You were working with again? I didn't jot
down the name.
A It was Augustine, Incorporated. They later
changed their name to Townfusion, one word.
Q Townfusion?
A Yes.
Q They were located where?
A Their first office where I started working was
Old Jonestow// Road/Colonial Park area. Then we later moved
our office to Vartan Way, which is right off of Progress
Avenue.
Q
there?
A
Q
A
Q
A
Q
Mr. Carchidi?
What was the type of work that you were doing
Recruiting.
Recruiting?
Yes.
Your contact with JFC was through Brian?
Yes, sir.
Brian asked you to come in, and you met with
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A Actually, Brian asked me to speak with Jim.
And actually that same day that I spoke with him is when I
came in.
Q The meeting must have been a good meeting
because eventually you went with them?
A Yes, sir.
Q My indication is that you started with them
sometime around February the 23rd of 2001. That's the date
that you signed the covenant not to compete, the employment
agreement?
A
Q
employment?
A
Correct.
That would have been around your first date of
I believe that's correct.
Somewhere around that area,
Q
were doing?
A
Q
A
Or is it the 26th?
yes.
When you came with JFC, what was it that you
What was your job title and your job function?
When I started here?
Yes.
The letter I signed, I was going to be a
search consultant. I'm not exactly sure. I think it says
sourcing specialist in there, is that correct, or search
consultant. But my -- can you see what it says in there?
It should say on the same page here, because there's a job
title. You sign what your job title is going to be, I
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believe.
consultant.
I thought I was going to be a search
When I signed the contract, that's what my
initial duties were going to be.
Q What would that be, in other words, if you had
to describe to somebody what it was?
A Search consultant I would say is a full
360-degree recruiting, not only going out and selling the
company you work for and selling yourself to pulling a job
order, but also doing the sourcing and recruiting to pull
out the candidate and to fill the job order. That's what a
search consultant does.
Is that what you did when you started with
Q
JFC?
A Yes. I was doing it the whole time, yes. The
funny thing is maybe like two months after I started, during
one of our per meetings --
Q
A
month.
During one of your what meetings?
Per meetings. We had a per meeting once a
Linda, Jim's wife, said Steve is now officially a
search consultant. And everybody starting laughing. Deb
Jamison goes, well, dab, he's been doing that the whole
time. So that's what I was brought in to do.
Q Was Brian your supervisor or did you work with
him as a contemporary?
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A Actually, when I first started, Jim had wanted
Brian to kind of like administer what I do, kind of look
after like some of the stuff that I was going to be doing.
As soon as I started, though, I mean he's like, all right,
Steve, here's some projects I need your help on, I'd like
you to do this, do that.
Q This is Brian telling you that?
A Yes, sir.
Q What were those types of things?
A Like sourcing of candidates. What I mean by
sourcing is calling into companies and pulling out
candidates, names of the people he was looking for. Say,
for example, he had a project he was looking for web
developers. He would ask me, Steve, I need web developers,
I want you to go get those candidates. Then it's my job to
do the sourcing, actually calling into companies and pulling
out the web developers he was looking for.
Q Would that mean that you went to a database
where you had people who had applications on file, or would
you actually go to other employers and try to recruit those
employees away from those employers?
A I would actually do the research and find out
the companies who had web developers and call in myself and
do that. So there was nothing about looking in any type of
database, nothing like that.
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Q Did you receive any training whenever you
started with JFC Temps?
A As far as just Caldwell Training, as far as
their database, but nothing else.
Q How would you describe your working
relationship with Brian as far as the number of contacts
that you would have? Did you meet with him probably every
day? Did you meet with him once a week? When I say meet
with him, either meet or talk with him.
A When I first started with JFC, when I met
Brian and everything, we talked once in the morning and once
in the afternoon, just to give him a rundown on my progress,
what I did, stuff like that.
Q How long did that continue?
A That lasted until, I'm guessing, until after I
made my first two placements, which would have been end of
March sometime.
Q Up until that point when you made your first
two placements, was there ever any discussion between you
and Brian regarding you may be coming to work with him on
another agency prior to you making your first placements?
A Yes, sir. He actually didn't come out and say
come work for me. But he said you're making what, 33 and a
third percent right now, how would you like to make 60
percent. He didn't come out and say it, but I knew what he
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was getting at. But I never responded to that. I said
obviously I would like to make 60 percent but nothing to the
effect -- he never came out and said to me do you want to go
and start your own business or anything like that.
Q When was it that he started saying to you
you're making 33 percent, how would you like to make 60
percent? How soon after you started?
A Maybe two and a half weeks. As soon as I
started bringing in names, he started, boom, yeah.
Q Did you know at that point in time that he had
another business practice going on or didn't you know that
at the time?
A No, he didn't have a company name at that
pointl He didn't even -- he thought about it for I guess
seven years, but he never went through with anything. He
didn't get the company name until after that point.
Q Do you know if he was actually working without
having the company name before he got the company name?
When I say working, I mean --
A I understand. Meaning like gathering
candidates and making cold calls?
Q Right.
A I believe he was. But I don't know, because
obviously he works two to three days a week from home. Me
being a new ~uy, he didn't want to tell me so much until I
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made a commitment
that.
Q
think he was?
A
Q
A
Q
to him. I don't believe he was doing
So to the best of your knowledge, you don't
Not until he got a company name.
But you didn't know for sure?
Right, not for sure.
In your affidavit you indicate that you were
approached by Brian in and around March or April of 2001 to
start an employment agency business that would directly
compete with JFC. Would you explain what happened, when
that happened? Can you be any more specific; or is
March/April about the time frame?
I can't give an exact date because I'm not
That would be a good time frame, though, those two
A
sure.
months.
Q
around there?
A
The end of March, beginning of April, sometime
I would say the beginning of April would be a
lot closer to the exact time. What happened was, I'm a big
sports fan. So is Brian. It was at the time March Madness
was going on because I remember watching a basketball game
at his house, college basketball.
He first brought it to my attention about
starting our own business in March, because I remember
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watching March Madness. But it doesn't mean it has to be
March because of the fact those games carry over. So the
end of March, beginning of April is a good time.
He said to me -- we were eating dinner.
Actually, my girlfriend and I were both there. We were
eating dinner, just pizza and stuff, pizza and soda and
stuff. He says to me out loud, "How would you like to start
your own business?"
Q Was anybody else there besides you and your
girlfriend and Brian?
A Actually, when he said that to me, his wife
and my girlfriend, and their kids were all in the living
room watching something else. It was just Brian and I. But
his wife already knew the situation because he already
talked to her about everything, because when we went back in
the living room, he was talking about it to all of us. She
was aware of the fact that he was going to ask me.
Q Now, what was the purpose of you and your
girlfriend being there for dinner, for this specifically or
were you there watching a ball game; or don't you know?
A Yes, the purpose of the whole thing was for
him and me to play one-on-one in basketball and then to
watch the Duke-Arizona game which was on that night. That
was the purpose of the meeting.
Q When you went you didn't know that he was
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going to be talking to you --
A No, I had no idea. He said -- we scheduled a
one-on-one game. It was the first Saturday. My girlfriend
and I went down and we ate pizza and stuff. We played
one-on-one that same day. That was the purpose of me going
there, but then there was more to it than that.
Q What specifically did he say? In other words,
you said he asked you about would you like to start your own
business. Did he say anything more after that?
A Yes. He said that we could be a terrific
team. He said also that he has been wanting to start his
own business for sometime, for like seven years, and he
hasn't met the right individual for the job. He feels that
my philosophies and techniques are very unique, and he feels
like I would be a great business partner.
He also stated that because of the fact that
he has some reputable companies like Rite Aid and Blue Cross
and on and on and on, that he wouldn't be allowed to touch
those clients for a year period because of the noncompete;
he needs somebody like me to target on a national basis or
companies outside of that radius that wouldn't violate
noncompete, to pull in job corps and pull in clients. That
way he could help me work on them, and we could then do
splits and stuff like that.
Q He was aware of the noncompete?
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A Very aware.
Q He let you believe or in his discussions with
you he was concerned about the noncompete and he was trying
to see ways that he could operate the business and not
violate the noncompete, is that right, or what?
A That is correct. That is correct.
Excuse me. Can I say one more thing?
Q Sure.
A At one point in time -- I didn't mention this
to you and Jim, the meeting -- he was going to start the
business RCI, start the business, have me work the
business. So I was going to quit JFC, work the business
myself, and he was going to wait until he collected all of
his income as far as like 5 percent and stuff like that
before he actually quit, because obviously in this business
it's like a snowball: Once you make a placement, the next
month, the next month and the next month. He was going to
wait until everything died down so he could collect as much
as he could and then quit. So I was going to quit, start
the business myself. And then later down the road he was
going to quit and come to work with me. But the whole time
he would be collecting money from the business.
Q From JFC?
A Not only JFC, but also RCI.
Q So he would, in essence, be working --
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A
Q
A
Q
about
A
Q
that?
Both companies.
-- both companies?
Yes, sir.
What did you tell him whenever he asked you
When he asked me about what?
That evening at dinner when he
would you like to start --
A Yes. Obviously when he said 60 percent
compared to 33 and a third, I mean it sounds appealing.
said, "Would you be
"Yes, I would be."
when you figure out
said ABOUT how
He
interested in hearing more?" I said,
I'd be stupid not to. I mean, sure,
-- say, for example, I place Jim in a
position. He's a sophomore engineer, $80,000. 60 percent
of that as compared to 33 and a third, I guess I did take a
And I'd be lying if I said I didn't. So, yes, I
"Yes, I'd be interested in hearing what you had to
look.
said,
say."
Q
to --
A
Then what happened after that with regard
In that same evening or leading up to the
whole situation?
Q You have to let me finish the question. She's
having a difficult time and so am I, but we'll work with you
on that.
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That evening, was there any further discussion
with regard to the business deals?
A We talked about it for probably about 45
minutes to an hour, just the whole situation about what he
planned to do, how he planned to get around the noncompete
and so on and so forth.
Q I think you had mentioned that he talked about
-- did you talk about financing, who was going to fund this?
A Yes.
MR. GROSE: Off the record.
(Discussion held off the record.)
BY MR. GROSE:
Q What was your discussion with regard to
financing RCI?
A Brian had actually talked to me about the
evening we started talking about the business about his
financial situation as far as what type of bills he had,
what type of percentage he was making at JFC, what everybody
else is making at JFC, what certain percentages he got, what
bills Jim paid of his, Jim Carchidi.
He also talked to me about how much money
would I need to live off of while I was trying to bring in
money for RCI, because in our business it takes about 30 to
45 days for an invoice and obviously I wouldn't get paid
until an invoice came in. He talked to me about how much
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money I would need to live off of until I got an invoice,
stuff like that.
Q Did he talk about you having to finance some
of that, or was it primarily he was going to be doing the
financing?
A He was going to do all of that.
Q This dinner discussion as best as you can
recall took place sometime the end of March, April or --
A It could be middle of March.
Q Middle of March?
A Yes, I would say middle of March, because I'm
not exactly sure if that meeting took place prior to me
making the two placements with JFC or after. It was
probably before. Because as soon as I started pulling out
names and stuff like that, he was very excited and starting
mentioning the 60 percent. So it could have been before I
made the two placements.
Q After that conversation ended that night and
you went home, what was the status of it at that point?
Were you going to think about it? Was he going to get back
in touch with you? How did you leave it when you left that
night?
A I left it by saying that I would be
in hearing more, basically I'll think about it.
Q
interested
Then what happened after that with regard to
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contact regarding RCI?
A He just said to me that, one, we couldn't talk
about it at work as far as Instant Messaging, nothing like
that. We didn't discuss it at work.
Brian and I had a professional relationship
and also a personal relationship. I explained that to him
when I was at his house playing basketball, don't let me
beating you in basketball affect what happens professionally
and so on and so on. I had to add that in there, by the
way. Stuff like that.
As far as to answer your question, we talked
on the phone probably once a night after that just so he
could tell me where he was at as far as the business, what
his further plans were and what the next step was.
Q There was almost constant communication
between he and you with regard to forming RCI after that
dinner meeting?
A Yes, sir.
Q Did he tell you at that point in time that he
was starting to siphon some of the business off, for lack of
a better word; in other words, to sort of get things started
so that he could shift business over to RCI as opposed to
JFC?
A Yes, sir. Actually, during his days off, he
was on the Internet surfing as far as like SI corporations,
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A
biggest step.
Q
A
Q
A
LLCs and on and on and on, like as far as the difference and
how he could benefit from each one of those type of
corporations.
Q As far as actually placing clients or anything
of that nature, did he -- strike that. He wouldn't have
done that until after he started RCI.
After the dinner meeting, you're having
discussions about how you're going to move forward with this
thing. What is the next major event then that happens with
regard to deciding whether to go forward with RCI or not?
He picked an attorney. That was the next
Who was that attorney?
Rosemary McDermott.
How did he pick that attorney?
I believe he found her name on the Internet in
the State of Maryland, within -- I think it was 74 miles
from the closest JFC location.
Q How does that figure stick in your mind?
A The 74 sticks in my mind because the 75-mile
radius is in the noncompete. And he said to me that
Rosemary's office was 74 miles from the closest office
location of JFC.
Q Would that be the Chambersburg office or you
don't know?
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A I think it was a York office that he was
talking about. I'm not sure, though. I'm not real familiar
with that sort of area.
The 74 sticks in my mind because it says 75 in
the noncompete. He said, "What's 1 mile. It's not going to
make a big deal."
Q Was he thinking of incorporating or making an
LLC? Where was the business address of the LLC going to be?
A It was going to be in the State of Maryland.
The reason being is he was going to give I believe it was
his cousin or his uncle or something like that physical
address for the name of the business. So say, for example,
RCI, Recruiters Consulting International, it would have a
Maryland address. And it was his brother-in-law or
something like that's address, physical address.
Q So there wasn't going to be an office as such
there, or was there?
A No, there wasn't.
Q Was there going to be an office anywhere?
A We were going to work out of our homes. He
was going to work in his Gettysburg office. I was going to
work where I live.
Q How were you going to do that? Were you just
going to have telephone lines coming into your homes?
A Yes. He actually talked about how much money
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we would need for phones, how much we would have to take out
for phone bills, and so on and so forth, like an Internet
line, fax, stuff like that.
Q In essence, there were goin9 to be two
locations where RCI was 9oing to be workin9 out of: One was
going to be your home and one was going to be his home?
A Yes, we were each going to work from home.
Q Don't you need, quote, a storefront for that
type of business? Don't you need a place for people to come
into to fill out applications?
A No, sir, not really. Actually, when you work
on a -- Brian very rarely ever interviews anyone that he
places. And me working outside of Pennsylvania as far as on
a national or international basis, no.
Q So it was very easy to open up a competing
business and not have a, quote, business location other than
your home,
A
Q
A
Q
A
Q
A
someplace where you could work out of?
Yes.
Did you meet with Rosemary McDermott?
Yes, sir.
Where did you meet with her?
In Maryland.
At her office?
Yes, sir.
What town was that? Do you know where she was
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located?
A
exactly sure.
Q
A
I think it's Frederick, Maryland. I'm not
I know it was in Maryland.
What was the discussion that took place?
We actually sat down with Rosemary. And Brian
had said that we were interested in starting our own
business, Steve was actually thinking about partnering with
me, can we go over some of the facts, can we go over some
things we want in the articles of confederation.
Q Is that the articles of incorporation?
A Incorporation, I believe.
And basically throughout that meeting, we just
talked about like starting the business, how much it would
cost, what would he need as far as the EIN number, as far as
things that I wanted to appear as far as addendums, I
believe was the word she used, and stuff like that.
Q As far as what?
A Addendums.
Q Addendums?
A Yes. I'm not sure exactly sure with that.
Q Was there discussion as to the type of legal
entity that you were going to create? In other words, was
there discussion of a corporation versus a limited liability
corporation or a limited liability company or a
partnership? Was there any discussion about that?
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A Yes, a lot of conversation. We actually sat
down with Rosemary and went over different types of
corporations and LLCs and stuff like that.
Q Was there a decision made as to what legal
entity you were going to use, you and Brian?
I believe it was the LLC.
A
Q The LLC?
A Yes.
Also,
meet with Rosemary,
accountant.
Q
A
though,
Q
that same day we were in Maryland to
I believe, we also met with an
Do you remember the accountant's name?
No. But I remember what her desk looked like,
because I liked it.
She had a very nice desk?
A It was a marble top.
I'm thinking Fisher,
correct. It was various partners,
There was three different ones.
It was real nice.
but that might not be
just like your name.
Q That was also located in Frederick?
A Yes, sir.
Q Did Brian set that meeting up, also?
A Yes, sir.
Q This was after you had the meeting with the
attorney or before?
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A
you went to the attorney?
A Yes, sir.
It was actually before.
So you went to the accountant first and then
Not at first, no, I didn't put in anything. I
Q When you left the attorney's office, did you
have papers to fill out to actually start RCI?
A Yes. She had actually given him paperwork for
the EIN number. She said all he had to do was fill it out,
take it to Baltimore, and we could start RCI tomorrow,
because once you have the EIN number, I guess you can start
a business. So, yes, she gave us paperwork.
Q RCI was going to be what, Recruitment
Consulting International?
A Recruiters Consulting International.
Q How was that name selected?
A I think Brian's wife came up with it.
Q When you left McDermott's office that day with
all of the information, what was the understanding? Were
you going to have an ownership interest in the LLC or not?
A Yes. He wanted her to put in the
documentation that I would own 50 percent of the business
and he would own 50 percent of the business.
Q Were you going to be required to put in any
capital or pay any money in to start up or not?
A
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didn't put in anything, period. But in the beginning, you
know, no, I didn't have to put in anything.
Q So you leave McDermott's office that day. And
then what happens next with regard to forming RCI?
A Throughout the course of the next probably two
weeks, he's putting together the -- would it be articles of
incorporation?
not
But
corporation, it could be articles of incorporation.
a company, I'm not sure exactly what they would call
But it might be the articles of incorporation or bylaws or
those types of things?
A Bylaws is exactly what it was. We had to come
up with bylaws as far as what we wanted in the articles of
incorporation.
We both -- like he would ask me something. If
I didn't agree with it, then we would try to negotiate back
and forth and try to put something together.
Q
evening,
A
Q It wouldn't be articles of incorporation. I'm
sure exactly what the terminology would be in Maryland.
if it's a limited liability company -- if it's a
If it's
it.
You say that lasted for several weeks?
Probably about three weeks.
Were these conversations always in the
or did he call sometimes during the day?
Always in the evenings.
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Q
In the evenings?
Right.
At some point you then finalize this
information that you were going to take back to McDermott?
A Not really, because he had paid Rosemary
McDermott a $500 retainer check for her to do certain stuff
for the company. And he had actually given her a time
frame, like you have two weeks to get this done. And she
felt rushed. And she had like a month prior to these two
weeks that he gave her. So she had plenty of time to get
this done, but she was like being real slow about it.
He actually called her and said, look, you
have two weeks to get this done. She's like, look, you're
pressuring me, I don't have any time to do this, da, da, da,
da, da. And he said, well, I will have my money back or
something like that, and he fired her. He told her she was
off the business, whatever.
Q Did he consult with you first?
A Actually, yeah. He had actually wanted me to
speak with Rosemary, and I did. I believe I called
Rosemary, or she called me. I'm not exactly sure.
remember.
phone.
said,
I don't
But I actually spoke with Rosemary on the
And she had said, Look, Brian's rushing me. She
Brian's rushing me and I don't have enough time to get
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this done in two weeks; very rude to me. Rosemary was very
rude. I said, Rosemary, you have had a month to get this
done, you should have been done a week ago; I mean any other
attorney would have had this done in a couple of days. It
doesn't take a month and a half to start a business.
Basically, I told her, What did Brian say?
She said, "Brian doesn't want to use me anymore." Then I
said, "I ~uess he doesn't want to use you anymore."
After that conversation when I consulted with
Brian, that's when I told him I wasn't interested.
Q Why was that?
A Because throughout the process I was talking
to my girlfriend, to my family. I was the youngest search
consultant at JFC by 16 years. I thought I was blessed to
be in the situation, and I didn't want to do that to Jim,
because I thought that Brian has been the top, he's there
for such a long time. Me being a young guy coming in, young
and talented individual, Jim seeing me as being his future
~uy, two of us to leave on the same day would be a
tremendous loss. And I didn't want to do that to Jim. And
I told him I didn't want to do it.
Q
May?
You told Brian you didn't want to do it?
Yes, sir.
When was that roughly? A time frame. April?
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A
in May.
Q
A
sudden?"
Right before he went on vacation. So it was
What did Brian say about that?
He says, "Why do you change your mind all of a
I'm like, well, I didn't really change my mind. I
said, "I was interested in what people had to say. I was
just interested in hearing about it. Maybe I was eager to
be -- I'm a young guy and I saw the dollar signs, and it was
something that was appealing to me at that time. But after
talking with my girlfriend and my family, there's more
important things to me in life than money. Jim's friendship
is definitely more important." I told him that, yes, I
could leave JFC where I'm making I believe it was $48,000 at
that time. I believe in May, in the beginning is when you
separated that. And I can leave there and make over a
hundred thousand dollars, which is definitely my goal is
where I want to be. "But if I wanted to start my own
business, Brian, I'd probably want to do it on my own. And,
two, I'm not ready for that yet. And I don't want to do
that to Jim. I mean, one, he just hired me in February.
And, two, if we were both to leave on the same day, that
would be a tremendous loss to Jim."
Q From that point on,
discussions with Brian about RCI?
change your mind or anything?
did you have any further
Did he try to get you to
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A Yes, he did. He would call me and say we just
made a placement, I believe at that time, and he said
something to me about -- he said you're getting $5,000 of
this, because I believe it was a $10,000 fee we got. He
said instead of splitting this 50/50 with, and me not
getting anything, you could be getting 60 percent of this.
Little things, you know.
I said to him, "You basically got it made at
JFC. I mean you made 160, $170,000.
of anybody there. You get 5 percent,
or a dividend or something like that.
bills."
well.
You make the highest
I believe, quarterly
He pays your phone
I believe he has a credit card you pay for as
He told me this whole situation with JFC.
"There's been other people there 20 years that don't do the
job you do but don't make close to the money you do either.
Why do you want to leave?"
Q What was his response to that?
A He said, well, Jim doesn't respect me. "Steve,
how long have you been working here and Jim hasn't even said
to me what type of job is Steve doing," and on and on and
on. He took that to heart. He said that Jim doesn't
respect him.
But he likes it when Jim doesn't talk to him.
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He likes not talking to anybody. He likes being by
himself. He likes coming when he wants, leaving when he
wants. He likes the flexibility that he has. But he just
-- he had told me about prior situations where they would
get into mouth battles. And he just said that they don't
respect one another.
Yes, he has made way -- a lot of money with
JFC, and he said that. But he obviously can make more. I
mean 50 percent, 50 percent. Instead of making $180,000,
Brian wanted to make $360,000. He's very greedy. That's
what I found out later on down the road when he started
telling me about -- to go back to the bylaws, he wanted to
put in that at the end of the first year of the business, I
would give him $10,000 for coming up with the idea to start
the business, for being the mastermind behind this. I'm
like, you want me to give you $10,000 for saying, yes, I'll
partner with you? That's ludicrous. No way.
It was more than that in the begirkning, but he
finally settled on $10,000.
After I measured the whole picture about what
I had to lose and what I had to gain, yes, I could gain
another $100,000; but, one, I didn't want to lose Jim's
friendship. I didn't want to burn that bridge. And I
wasn't ready to do that. And that's why I said no.
Q After McDermott was fired, did he seek out
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another attorney? Do you know?
A Yes. He had actually told me that he was
getting on a website where they actually gave the attorneys
like levels, like As, Bs or Cs, different grades; and he was
going to get a better attorney.
Q Is that called the Martindale-Hubbell? Does
that name ring a bell?
A That name doesn't ring a bell, but it was
something to that effect.
He had said that Rosemary had screwed him
over, he had lost $500, which he did. He paid for all that.
That was a check, $500. And he said he was going to look
for another attorney.
Q Do you know who the other attorney was?
A Yes. It was Leslie A. Powell.
Q There was a letter that was sent from Leslie
Powell dated May 29th to Brian and to you.
MR. GROSE: Mark that as Exhibit A.
(Letter dated May 29, 2001, Powell to Leach
marked Exhibit A.)
John,
GROSE:
and St.
BY MR.
Q
Steve, I'm going to show you what has been
marked as Exhibit A to the deposition and ask if you have
seen that document before.
A Yes, sir, I have seen that before.
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fact that,
had to do to sign this and we were ready to
still trying to kind of sell the business to
that's what the purpose of the letter was.
Did you get
Q
this letter?
A
Q
A
I think that Brian did this because of the
one, he wanted me to think that it had been all I
So he was
I believe
in touch with Brian after you got
Actually he called me, I believe.
Okay.
He asked me if I received it, and I said yes.
And he had said that if I agreed to all of the terms, to
sign it and send it back.
I had said, well, I told you I'm not
interested in starting a business at this time with you, I'm
not going to sign it, I don't want to sign it.
He said, well, I got her to send it to you for
a reason, please take a look at it and si~n it if you're
interested.
I'm not exactly sure if Jim told you I had two
copies of this that I received in the mail. One was a
letter for my records, and the other one I was supposed to
sign and send back.
When I walked in to resign, I had both copies
of the letter. I didn't even bother si~ning it and sending
it back. I thought I threw it in the trash, too. Two weeks
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prior to me resigning, I said, Amanda, I need some
paperwork. I deleted all of the e-mails we ever sent each
other, everything.
Q wait a second. You said e-mails that you ever
sent each other. Between you and Brian?
A Right.
Q So there was correspondence from your home
e-mail with Brian regarding RCI?
A It's not really home e-mail. It's personal
e-mail. Yahoo, I can check it from the office; I can check
it from anywhere. So it's not really home e-mail.
Q You could e-mail to him even from the office?
A Yes, but I never did.
Q Did he ever send stuff to you or call you
during office hours or while you were at work, I should say?
A Regarding the business?
Q Yes.
A No, sir. Two reasons.
Q Sure.
A The first reason is he said that JFC had the
right to tap our phones at anytime. It might have been in
the noncompete which I could care less about because I make
a lot of calls every day. And obviously if you're going to
tap the phone, you're going to tap the phone. I didn't care
about that.
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But he was very paranoid. He has a lot of
paranoia. He feels like, one, everybody's out to get him
and, two, he can never be safe. That's why he keeps to
himself a lot. He's very greedy and he's very paranoid at
the same time.
Q When he called you and said did you get this
and please think about it, did you get back to him and say
I'm not going to this or did you just let it drop?
A I just let it go. I actually set this in an
envelope somewhere, and I have no idea what happened to it.
Like I was saying, prior to me resigning, I was running
around the house saying, Amanda, I need some paperwork from
Brian that states that he wants to start his business with
me, because when I resign, I don't want these guys to think
I wasn't doing anything for the past month and a half or six
months or however long I was here. I wanted them to know
that, one, I was doing my job and, two, let them know what
Brian is like and what he's trying to do. That way he
doesn't screw them in the future, because if Brian saw me as
the perfect guy to start his business with, who knows that
the next guy he brings in might not be the perfect guy, you
know what I mean. Yes, I took that as a compliment being
the right guy. But people like that say it to anybody.
So I was running around the house trying to
find this document and I couldn't find it. And one night I
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was looking through my paperwork and I found it. And I'm
like, Thank God. That way I had some proof, because I could
be coming out and saying this and he'd be like, What are you
talking about? You know, he might not believe me. So I had
to get some documentation. So I found this.
Q This is the end of May. You were going to
make another comment?
A Yes. This meeting here was prior to Brian
going on vacation.
Q When you say this meeting,
the attorney?
that he met with
A Yes.
Q McDermott -- I'm sorry. Powell?
A Powell.
Q Prior to him going on vacation?
A Yes, sir.
Q Did he call you prior to him going on
vacation?
A Yes. Me said that he was going to basically
let everything sit where it was until he came back from
vacation.
Q And then he would get back in touch with you
to see if you wanted to go forward with it?
A Yes, sir.
Q How long did he go on vacation?
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A
mid-June?
A When he got back from vacation?
exactly sure of the date he went on vacation,
weeks after that.
Two weeks. Two weeks' vacation.
So we're talking about sometime around
I'm not
but it was two
Q And when he came back, did you get in touch
with him or did he get in touch with you regarding RCI?
A I believe he came back on a Friday. He was
off that day and he called me in the office, very pumped up,
energetic. He was very excited. He's like I'm ready to do
this. He was very -- I remember the day because he was very
pumped up and energetic. And he's very laid back. He was
very pumped up. He's like, Are you ready to do this? He's
like, Me being on vacation, I know what I want now and we're
going to go get it. Are you ready?
I said, Ready for what? He's like, Are you
I was like, This is not the time to be
but, no, I'm not ready. And I just hung
ready to do this?
talking about this;
up.
Q
RCI?
A
Then what happened after that with regard to
I totally just stopped talkin9 to him. He
would call me and leave messages. I wouldn't call him
back. I was trying to do my job what I was paid to do.
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Obviously when you have your mind on another company and
this and that, you can't concentrate. And I basically just
let it alone.
Q
A
Do you know whether he went forward with RCI?
I know he was being very proactive at work as
far as not doing as much as what he could be doing.
Obviously when you have a clientele built up like he does,
job orders come to you. You don't have to go to them. Job
orders were coming in. He wasn't doing anything.
Q Explain to me what you mean by that, when you
say job orders were coming in but he wasn't doing anything?
A Brian has partners with Rite Aid, Highmark,
those companies, since like 1997. So when you have a
clientele built up with somebody for at least -- any time --
a four-year period like he did, they have the confidence in
Brian to go out and find those candidates. So they just
call him and say, Brian, I need a job need developer; or,
Brian, I need a Unix administrator or, Brian, I need this.
I'm just saying, for example, like a web
developer or a unix administrator or a sophomore engineer or
a mainframe programmer. It could be any position. When you
build that trust up with a recruiter, they know you can go
out and get those candidates. So they were calling Brian
with job orders, open job orders, for people that they
needed to come work for their organization and they.
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Q What you're saying is he wasn't actively
trying to fill those positions?
A Yes, sir.
Q Do you know whether he was filling those
positions with people, not through JFC, but through RCI?
A No, I know for a fact he wasn't doing that
because, one, that would violate his noncompete.
Obviously when you invoice somebody for a
place candidate, it has JFC's name on it. He was trying to
place candidates through RCI that have RCI's name on it.
And Theresa Riker or whoever would be like, Brian, I thought
you worked for JFC; I got an invoice from RCI with your name
on it. So obviously, he wouldn't put himself in that
situation. So, no, he wasn't doing that.
Also, to say something else, he was going to
-- I believe it says in the noncompete you have to stay away
from your clientele after you leave for a year, up to a year
period. He said that he has a trust, I believe, in those
individuals, his clients, to say, Theresa Ray Highmark, I'm
actually quitting JFC, going on my own, I could continue
making placements for you but JFC can't find out. He was
going to actually contact his points of contact at his
clients and tell them he was going to be leaving.
Q Had he set a particular time when he was going
to try to leave JFC?
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A
end of April,
placements,
coming in.
Numerous, numerous times. First it was the
I believe. Numerous times.
I mean he said, you know, I just made two
and in 30 days those billing are going to be
I remember one circumstance that happened. I
believe it was Pensky and Reading. He had just made a
placement with them. He actually went on a client visit and
said, look, I need you to please pay us in the next 15 days
or whatever it was, and they actually did that.
Q The reason for that was he wanted to get the
money in so that he would be paid that money through JFC
before he left?
A Exactly. Yes, sir.
Q So he was trying to keep everything happening
as quickly as he could, money coming into JFC, so that there
wasn't a lot out there when he left that be wouldn't paid?
A Yes, sir.
Q Do you know whether he was holding jobs back,
positions back, in an anticipation of him perhaps starting
RCI so that there would be a lot of positions he could then
fill through RCI as opposed to filling everything now and
then just going in with a clean plate or not a lot on your
plate?
A Actually, we had spoken about that, not
actually holding back candidates. But we talked about, I
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had said, Brian -- I had asked him a couple times, Why do
you want me to partner with you? Like I told you before, he
said, Steve, you're very ~ood at what you do and you're
young. I've never seen anybody that can do the type of work
that you can do. He would say obviously you're ~oin~ to
have to stay at this company for a year period so he would
need somebody else to pick up the slack to make the call to
the companies like Rite Aid, Hi~hmark, stuff like that. He
would obviously be marketin~ to new companies. But he
doesn't have to market to new companies because he has the
clientele built up. Do you know what I mean?
Q Let me just backtrack a little bit. You also
have a covenant not to complete. How were you ~oin~ to
service Rite Aid and Hi~hmark and these folks if you if
left, because that would be in violation of the covenant not
to compete?
A That's true. The work that I do at JFC now or
when I worked there -- excuse me -~ is I worked outside of
Pennsylvania. I mean I would help those guys fill local
positions, but I worked outside of Pennsylvania, callin~
into like the Boston, D.C., anywhere,
Atlanta, San Francisco.
For what you just said,
any major city,
sir, as far as Brian
not being able to call into those companies and get the job
orders and filling those with his candidates and me doing
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the same, yes, that would violate my noncompete. But later
on down the road, he said that maybe he could contact his
points of contact, get rid of his client sites, and say,
look, I'm going to be leaving, I can still find people for
you but we're going to have to keep it, you know, hush.
Obviously, I would have probably been helping, if I would
have went with him to do business, help him fill the
positions with his local clientele.
Q So what he was basically going to try to do
was still service those clients but do it on the QT or under
the table so it wouldn't be determined by JFC?
A Yes. Yes, sir. When he was not working
there, yes.
Q Right.
A Right.
MR. CARCHIDI: Will I get an opportunity to
ask some questions?
MR. GROSE: Sure.
BY MR. CARCHIDI:
Q Specifically, we're talking about -- you just
mentioned to us that he was going to still contact and work
with those companies even though he was under that
noncompete, am I correct on that? Either through you as an
intermediary or he was going to contact them himself and
tell them he was leaving or had left but he still wanted to
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work with them, am I correct on that?
A That is correct.
Q How do you know that he is not using the
candidate base that he has now? He's getting hundreds of
resumes in. How would I know -- do you know for sure that
he's not using those candidates to build up his database for
RCI in Maryland? Do you know that for a fact?
A I don't know that for a fact.
Q He has never indicated to you that he has one
way or the other?
A No. But no recruiter puts all of his resumes
he gets into the database.
that don't have any skills
he can't place.
So it could be college graduates
yet, or it could be just somebody
Q Does he have two separate databases down there
at his home, because I know he's working with his computer
out of there? I know I'm paying for some phone bills. Did
he ever mention that I'm paying for some of his expenses
that's he's using for Maryland?
A No. I mean obviously, like it's mentioned in
the affidavit, he has two separate phone lines. One is a
business line you pay for, the 0029, 337-0029; and the other
one, which is his personal phone line.
When he had mentioned to me, like in the
affidavit, Steve, I called on my day off here and pulled out
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a job order for a company for an embedded CC Plus
programmer, can you help me find that candidate, that's the
type of stuff he would say to me. Do you know what I mean?
Q But he actually wanted you to do recruiting
while he was employed by me for his company and RCI in
Maryland, is that correct?
A That's correct.
Q When he started taking that third day off in
June when I was out of the area, is that when he really
started pursuing opening it up? Because I noticed in June
everything dropped off. His production dropped off, et
cetera. Was he using some of those days to actually visit
clients and companies in Maryland?
A No. I know for a fact he didn't go to any
client business in Maryland. But he also told me that he
was going down for a third day, tell you family problems or
something like that so, one, he could probably concentrate
on RCI; and, two, so that -- I mean two days in the office,
I mean you would have to lug back a bunch of stuff, lug back
and forth a bunch of stuff. I know for a fact that he
didn't -- well, I don't know for a fact. I mean, Brian is
not the kind of person that would actually go to the client,
I don't think so.
Q Do you feel that when he told me that his
mother or something was sick, that was not fact? Did he
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mention to you that he was going to use that as a ruse just
to get me to --
A No. He actually told me his mother was sick
or whatever the case was. I believe that was factual.
Q Do you feel there's any way that I could
really track down whether he's using my candidates or not
when he leaves here with the amount of candidates coming in?
A I don't think so. I mean you could -- say,
for example, you even had all of the resumes that people
ever sent to Brian and you call each one of them and you say
are you still working with Brian, it's hard to tell. I
don't think there's a way.
Q But given the fact that he is already willing
to go in and still deal with the client companies
unbeknownst to me, he never indicated to you that he was
going to use some of my candidates? Already he has told you
he was going to use my clients. So I would assume -- he has
never mentioned anything to you about candidates?
A I mean if he's going to continue pursuing his
current clientele after JFC, they would obviously be local
So obviously those are candidates he already
candidates.
has.
Q
Do you know if he's contacted anybody else or
does anybody else in my organization know that he was
planning to make this move?
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A No, absolutely not. Just him and I.
Q Do you know, does he still plan to pursue it
at this point, do you believe?
A Actually, when I was -- when he was saying I
want you to leave at this time, and on and on, he had also
told me that when I actually resigned. He actually called
me at my house that same night and said that he had heard it
from Mike Mattola. Mike Mattola had actually called him at
home and said, Did you hear what happened? Steve resigned.
Brian was all surprised. And when he actually called me at
home he said, "Did you say anything?"
I'm like, "Say anything about what?" I acted
all dumb like I had no idea what he was talking about. He's
like, "Did they mention anything about me?" Paranoid again.
Q I'm unclear on why he thought you could work
from your home if he's worried about the 75-mile covenant.
How could you work out of your home as a recruiter?
A For me because of the fact, one, I would not
be doing business in Pennsylvania, obviously. But for him,
I guess he felt protected because of the fact the physical
address of the business was in Maryland. But you're right,
though, I understand what he's saying because obviously he's
going to be doing recruiting within that 75-mile radius.
But he felt protected because the physical address of the
business would be in Maryland.
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Q Does he feel that these clients would go along
with his program? You mentioned this lady from Highmark.
Has he contacted any of
and stated he was going
work with him?
these employers to your knowledge
to be moving on, would they still
A No, I don't know if he has or he hasn't. But
he told me that -- for example, Theresa Ray is his point of
contact at Highmark. He said that him and Theresa has built
up that relationship, obviously, for four years or whatever
it's been since he's been partners with him or a client.
He never told me that he said, hey, Theresa,
I'm actually going to be starting my own business, would you
He never said to me that he did that.
Has he mentioned any specific companies other
come with me.
Q
than --
A
Just the big companies he does business with,
HARSCO, Pensky. He didn't mention HARSCO, though, because I
believe they're a new client. I'm not sure.
But he did mention Rite Aid and Highmark, some
of the bigger companies.
Q
Q
he's breaking the contract.
everything.
So basically, he knows -- I'm done.
Go ahead.
I'm going to make a comment. He knows that
He's just trying to circumvent
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Q Does he feel that these clients would go along
with his program? You mentioned this lady from Highmark.
Has he contacted any of these employers to your knowledge
and stated he was going to be moving on, would they still
work with him?
A No, I don't know if he has or he hasn't. But
he told me that -- for example, Theresa Ray is his point of
contact at Highmark. He said that him and Theresa has built
up that relationship, obviously, for four years or whatever
it's been since he's been partners with him or a client.
He never told me that he said, hey, Theresa,
I'm actually going to be starting my own business, would you
come with me.
Q
than --
A
HARSCO,
He never said to me that he did that.
Has he mentioned any specific companies other
Just the big companies he does business with,
Pensky. He didn't mention HARSCO, thouHh, because I
believe they're a new client. I'm not sure.
But he did mention Rite Aid and Highmark,
of the bigger companies.
some
Q
Q
he's breaking the contract.
everythinH.
So basically, he knows -- I'm done.
Go ahead.
I'm goinH to make a comment. He knows that
He's just trying to circumvent
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BY MR. GROSE:
Q
MR. CARCHIDI: Thanks a lot.
I want to go back a little bit. In paragraph
17 of your affidavit, you say that Brian asked you if you
could find an embedded CC Plus programmer for a job order
for his competing company. Now, when did he ask you that?
Do you know?
A See, I don't know exact dates. But it was on
his day off because he had actually told me the day before
that he was going to make cold calls in the company on
behalf of RCI. So meaning that he would call into companies
and say, hi, this is Brian Leach, I'm calling with RCI, and
basically speak to them regarding their recruiting
capabilities and try to pull out open job orders on behalf
of RCI.
Q
RCI is
A
At this point in time, did you understand that
actually up and running?
Like Rosemary McDermott told us during our
meeting, she said once you have your EIN number, you can
start your business. The only thing that was holding Brian
and I back was the bylaws. We couldn't come to an agreement
on the bylaws. He was being greedy, he wanted this, he
wanted that, and on and on and on. That's what made me
realize, after everything was just back and forth, back and
forth, how greedy he was. How could I work with somebody
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like this, partner with them, if he was going to act like
this. And then I started thinking about Jim and his wife
and their business and what they've done in the past 26
years to build up what they have. And I didn't want to do
that to them.
Q To go back to my question, whenever it was
that he called you, he called you at work and asked if you
could help him find this person?
A No. He called me at home.
Q Do you know like in June? Was it July? Was
it August? When was it?
A No, I know it wasn't July or August because we
didn't even talk about the business in July or August
because he knew that I wasn't even interested. That's why
he started cutting me off from my candidates.
Q What do you mean?
A Cutting off, like I was sending him
candidates, my candidates, for his job orders. He wasn't
submitting my candidates for those positions.
Q So you in your capacity as an employee of JFC
were sending him candidates for positions that he had and he
wasn't using your candidates because you weren't going with
him on RCI?
A
Q
Correct.
That obviously had an impact on JFC's overall
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business because JFC wasn't done placing those clients?
A Not only JFC but also myself, yes.
Q Did you give him any names for a programmer
for that job order for the competing company or not?
No, sir. I didn't even look at it.
When was it that you decided to resign from
A
JFC?
A
Q
A
Wednesday, August 15th is when I resigned.
But when was it that you decided to resign?
The position I accepted, there was actually
three weeks of interviews, phone interviews, different
cuts. It started out with 30 and every week they would cut,
cut, cut. So I didn't even make up my mind to leave JFC
probably until the beginning of August, because I was still
in negotiations with my contract, my relocation package, and
the 401K, et cetera. The beginning of August probably.
Q This whole time up until the day of your
resignation, you had never said anything to anybody at JFC
regarding Brian's contacting you or his inquiry or anything
like that?
A
Q
Never, never.
From your perspective you don't know that JFC
or anyone in the management of JFC ever knew anything about
it?
A I knew they didn't because Brian and I were
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the only two people that knew.
Q Did you want to say something more?
A Yes, sir.
Throughout the course of this whole thing, I
was having meetings with Jim Carchidi and Steve Martin, the
manager at JFC.
Q About what?
A My productivity; and, Steve, what have you
been doing the past two months, and so on and so forth. A_nd
I had to try to find ways to cover up the whole situation.
I wanted to say something about the whole situation but I
didn't feel that the time was right. But I also felt like
after those meetings I had to say something to Brian because
I was going to jeopardize my job to save his behind, and I
wasn't going to do that.
Q One of the things I think what you're
referring to is your productivity fell off because Brian
wasn't placing your candidates?
A That is correct.
Q So it made you look bad in the eyes of JFC;
they're wondering what is this guy doing because he's not
placing anybody?
A
explain to
That is correct.
So when you went in to resign, you wanted to
them why your productivity had dropped off in the
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last couple of months, at least from your perspective?
A Actually, when I went in to resign, the first
thing that came out of Jim's mouth was, Your productivity is
great, in the past month and a half you had been doing
great. That's because prior to the resignation I had a
meeting with you. I'm not exactly sure of the day. It was
a month before this. They had brought it to my attention
that, Steve, your production activity is down, you have to
do something.
I then talked to Brian. I'm like, Brian,
look, you need to start submitting my candidates to your
clients because, one, I'm going to get fired. And I'm not
going to get fired because of you. He started sendin9 my
candidates over. I had four interviews within a week
period. So they were excellent candidates.
Q Just before you resigned, things started to
pick up with Brian and he did start submitting some of your
candidates?
A
Q
Correct.
Why was it that when you resigned that you
decided to tell JFC about this?
A I wasn't going to say anything. I had spoken
with my parents several times about the situation. Them not
knowing anybody that I work with, my mom said, Steve, don't
burn that bridge, don't do that. And my girlfriend also
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said the same thing.
But I thought in my mind that it would be the
right thing to do to tell Jim because of the fact, one, I
looked at Brian as being very greedy and selfish and only
looking out for himself. A_nd I thought that if he doesn't
partner with me, he's going to partner with somebody else in
the future; and they're going to be out of two people
again. A_nd I did it because I want to look out for Jim, and
that's the truth. I told my girlfriend several times that I
felt it would be worth it to burn a bridge with Brian and
not burn a bridge with JFC.
That's the main reason. I didn't want to burn
a bridge with Jim and his wife because, one, he had the
faith and trust in me and to give me the opportunity, to put
me in a situation with eight other search consultants, and
me being the youngest by 16 years. I felt blessed to be in
that situation and I felt like I deserved to be in that
situation.
least that
Q
15th,
A
Q
A
Q
And he 9ave me that opportunity, and I felt the
I could owe him is to tell him what happened.
When you handed in your resignation on the
who did you meet with?
Jim Carchidi and Steve Martin.
Steve Martin is the general manager?
That's correct.
Was your purpose just to give them a letter of
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resignation and tell them about this situation with RCI?
A I wanted to tell them three different things
at the time of my resignation.
The first thing is I wanted to show them my
productivity over the past month, which they already knew
that obviously.
The second thing was to explain to them my
resignation, where I'm going and what I'm going to be
doing.
And the third thing was to tell them about
Brian and what he was trying to do.
Q You confirmed with them what you're going and
where you're going to, obviously you're more than 75 miles
away, you're not in any violation of the covenant not to
compete?
A
Q
A
JFC.
Q
A
Clearly, yes, sir.
Who's Mike Mattola?
He's actually a search consultant who works at
Did you work with him?
Yes. He actually worked in the Harrisburg
location with me, and he actually knew of me resigning
because I actually had a meeting with my colleagues after I
spoke with Jim and Steve about my resignation.
Q So you didn't tell anybody else before you
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told Jim and Steve?
A I didn't tell anybody until I told them.
Q Then you believe Mike called Brian, and then
Brian called you?
A Yes, sir. Actually, around 6:00, Wednesday
evening, I received a call at my house from Brian Leach. He
said that Mike Mattola had just called him and asked him if
he had heard the news about me resigning. And Brian said
no, and Mike told him the situation.
Q He asked you whether you had said anything to
JFC about him and RCI and you, right?
A That is correct.
Q What did you tell Brian?
A He says,
the business?" And I
Q Why was
"Did you say anything about RCI and
said, "I didn't say anything."
it that you told him that?
A I actually said something to the effect, Say
anything about what? He's like, You didn't say anything,
did you? I said, Say anything about what, acting like what
are you talking about.
So, no.
are you talking about? He's
wanting to partner with you?
anything to them.
He then said,
I mean he said -- I was like, What
like, Did you about RCI and me
And I said, I didn't say
"Did they say anything about me
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at all?" I said, "They didn't bring up your name at all."
Q Was there a reason why you didn't want to tell
Brian that you had, in fact, told Jim and Steve about RCI?
A Yes, there was a reason.
The first reason is because during our
meeting, I left the meeting under the impression that Jim
and Steve were going to keep an eye on Brian but weren't
going to do anything significantly at this time. That was
my impression.
Me bringing this to their attention was not to
get rid of or terminate Brian, but I just wanted to --
obviously it's his decision what he wants to do. But I
wanted to bring it to Jim's intention of what he was trying
to do.
Q In the one e-mail that you had sent to Steve
Martin, you mentioned that Brian thinks everything is okay
or everything is cool. As far as the resumes are concerned,
I will look at them tomorrow and then get back to you. What
resumes are you referring to?
A The resume I was referring to is Steve had
actually told me when I spoke to him on the phone, I believe
it was Thursday evening, the resumes of the candidates in
which I had sent to Brian for open job orders. For example,
I mean, I had actually given the documentation to Steve and
Jim on the day of my resignation. Do you have that
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information?
MR. CARCHIDI: Steve has it.
Can I say this off the record here?
MR. GROSE: Let's go off.
(Discussion held off the record.)
BY MR. GROSE:
Q Did Brian ever mention to you that, in fact,
RCI is up and running? Do you know that for a fact or do
you not know that for a fact?
A I don't know that for a fact. But also, once
you have an EIN number, like I stated before, you could
start the business tomorrow. So I don't know for a fact
that it's up and running. But obviously RCI is under Brian
Leach's name. He has the EIN number. So obviously he could
do it if he wanted to.
(Affidavit marked Exhibit B.)
BY MR. GROSE:
Q Steve, I'm going to show you what's been
marked as Exhibit B and ask you if that's the affidavit that
you executed on behalf of JFC with regard to what you know
about RCI and your relationship with Brian?
A That is correct.
Q As far as you know, the information on the
affidavit and the information that you gave on the sworn
statement today is consistent and it's the best recollection
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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that you have of the events that occurred?
A That is correct.
Q You were not offered anything, any inducement
to come testify today, you weren't paid anything, you
weren't made any promises?
A No, sir.
Q You weren't coerced in any way?
A No, sir.
Q This statement is given of your own free will
and volition?
A That's correct.
MR. GROSE: Let's close the record.
(The sworn statement was concluded at 11:00
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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I hereby certify that the proceedings and
evidence are contained fully and accurately in the notes
taken by me on the within proceedings and that this copy is
a correct transcript of same.
Donna J. Fo~,/Reporter
Notary ~f~blic
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
71761~5805
TI76125805
P.01$/0Z0
May 29, 200I
Mr. Brian A. Lea~h
30 lo, md Top La~e
C-or.bm'g, Pennsylvania 17325
Otc, hard Hills, Apt 109
M{~ P~]~a 1705~
' It wa~ a pleasure meeting with B~ian on
~c me for o~ ~, ~ h~ly ra~
b~d ~ $ l ~0 p~
If these arracgem~s are acceptable to you, please sign b~.low ~d ~ t~ letter ~long
with thc rcro;~_~_ checlc W*xt~ two week~ efter receipt of thc rctninar, I will ~ovide you with a
A copy ofth;m Ie~r i~ ~ncloscd for your rec~ds. If you hav~ any questions or cone. ems,
pl~ase call. I look fca'ward to working with yoa.
Bncl~u'e
Agreed.and Accepted:
Mt. B~an A. Leach
lVlr, Steph~n St. John Dale:,
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS.
AFFIDAVIT
I, Stephen St. John, swear and affirm under penalty of perjury that the following
facts are true:
1. I am an adult individual residing at Orchard Hills, Apartment 109, Mifflin,
Pennsylvania;
2. I was employed by JFC as a recruiter;
3. I have been employed by JFC since February 26, 2001;
4. I was approached by Brian A. Leach ("Brian") on or around March or April
2001 to start an employment agency business which would directly
compete with JFC Personnel Inc. ("JFC");
5. Brian told me that he wanted my background for his partnership because
of the loss of revenue he would experience for the first year - losing
clients like Rite Aid, Blue Cross, etc.;
6. Bdan invited my girlfriend and me over to this home for dinner one
evening to present the Limited Partnership idea;
7. At the dinner, Brian went into great detail about his financial situation and
his intent to move forward with starting a business which would directly
compete with JFC;
8. Brian indicated that no one at JFC markets to companies or sources
candidates like I do;
9. I attended a meeting with Brian and a Maryland attorney, Rosemary
McDermott, in March or April of 2001 regarding the creation of a limited
liability company which would compete directly with JFC named RCl
(Recruiters Consulting International) ("RCI");
10. At that meeting, McDermott provided Brian with the documentation to form
RCl as a proper legal entity and to obtain an EIN number.
CERTIFICATE OF SERVICE
I, Wayne M. Pecht, Esquire, attorney for Plaintiff. hereby certify that I have
served Petition for Special Injunction or Preliminary Injunction upon the following
individuals by depositing a true and correct copy of the same in the United States mail,
first-class postage prepaid, addressed as follows:
Brian A. Leach
30 Round Top Lane
Gettysburg, PA 17325
KEEFER WOOD ALLEN & RAHAL, LLP
PA Attorney ID # 38904
Stephen L. Grose
PA Attorney ID #31006
Elizabeth J. Goldstein
PA Attorney ID # 73779
Dated:
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011-4906
(717) 612-5803
Attorneys for Plaintiff
JFC PERSONNEL, 1NC., :
D/B/A JFC PERSONNEL :
AGENCY,
Plaintiff
BRIAN A. LEACH, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 5t~ day of September, 2001, upon consideration of Plaintiff's
Petition for Special Injunction or Preliminary Injunction, a hearing is scheduled for
Thursday, September 13, 2001, at 1:30 p.m., in Courtroom No. 1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
J. J0~esley Oler,~ 'J.
Stephen L. Grose, Esq.
Wayne M. Pecht, Esq. ,
Elizabeth J. Goldstein, Esq. ~ ~
Keefer, Wood, Allen & Rahal, LLP
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011
Attorneys for Plaintiff
:rc
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.,
d/b/a JFC PERSONNEL AGENCY
Plaintiff,
V.
BRIAN A. LEACH
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
Defendant
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned on behalf of Defendant, BRIAN
A. LEACH, with respect to the above-captioned matter.
CLARK LAW OFFICE
Dated: September 13, 2001
By:
Frank P. Clark
Attorney I.D. #35443
3045 Market Street
Second Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, FRANK P. CLARK, ESQUIRE, do hereby certify that I served a true and
correct copy of the foregoing Praecipe to Enter Appearance upon the following below-
named parties by hand, this 13th day of September, 2001.
SERVED UPON:
Wayne M. Pecht
Stephen L. Grose
Elizabeth J. Goldstein
Keefer Wood Allen & Rahal, LLP
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011-4906
Frank P. Clark
JFC PERSONNEL, INC., :
D/B/A JFC PERSONNEL :
AGENCY, :
Plaintiff :
..
V. i
.
BRIAN A. LEACH, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 14th day of September, 2001, upon consideration of Plaintiff's
Petition for Special Injunction or Preliminary Injunction, and following a hearing held on
September 13, 2001, at which the evidence did not lead the court to conclude that it is
likely that Plaintiff will be able to show at trial that Defendant has to date violated the
restrictive covenant contained in his employment contract or that he intends to do so,
PlaintiWs petition is denied, without prejudice to PlaintiWs right to file a new petition
under Pennsylvania Rule of Civil Procedure 1531 upon receipt of evidence that Plaintiff
is in fact violating the covenant.
BY THE COURT,
J~esley Oler, r~. ~l~ /" '
Stephen L. Grose, Esq.
Wayne M. Pecht, Esq.
Elizabeth J. Goldstein, Esq.
Keefer, Wood, Allen & Rahal, LLP
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011
Attorneys for Plaintiff
Frank P. Clark, Esq.
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
Attorney for Defendant
:re
KEEFER WOOD ALLEN & RAHAL, LLP
210 WALNUT STREET
P. O. BOX 11983
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
F' F~ '
J C P .SONNEL, INC.
d/b/a JFC Personnel Agency,
Plaintiff
BRIAN A. LEACII,
Delkndant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
POINTS MAI)E TO ESTABLISH IRREPARABLE HARM
NOT CAPABLE OF BEING COMPENSATED WITH MONEY DAMAGES
1. The disturbance in the relationship between JFC and its clients and the
opportunities that would bc lost by this disturbance are not measurable. The "quality and the
quantity" of this type of disruption of JFC's business dealings is "inherently unascertainable."
West Penn v. Nolan, 737 A.2d, 295,299 (Pa. Super. i999).
2. Thc perception of other employees at J FC that have covenants not to compete that
they could simply ignorc them would cause severe damage to JFC that cannot be measured.
3. The marketing interests and the share of the market that JFC now has through
years of work and the potential loss of that market share is not capable of being calculated and
therefore, JFC cannot be compensated by money damages.
4. Employers have a right to protect thc good will of thcir company via a covenant
not to compete and that right is well established in Pennsylvania. Sidco (Brief, p. 8).
ENFORCEMENT AGAINST TERMINATED EMPLOYEEq
1. In a case first decided by Judge Hess and Hoffer of Cumberland County, the
Pennsylvania Superior court affirmed the decision that held that restrictive covenants will be
enforced against employees who are discharged for misconduct, notwithstanding the fact that the
employee did not make a voluntarily resignation. Demuth v. Mille_r, 438 Pa. Super. 437, 652
A.2d 891 (1995, Cumberland County). Courts have held that where employees have been
discharged for non-performance, them is a question as to whether the restrictive covenant is
necessary. That is not the situation in this case.
Respectfully submitted,
KEEFER WOOD AI/.F.N & RAHAL, LLP
Dated: September /3 , 2001 By
STEPlt~IEN L. GROSE
I.D. # 31006
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorneys for Plaintiff, JFC Personnel, Inc.
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Frank P. Clark, Esquire
134 Sipe Avenue
Hummelstown, PA 17036
KEEFER WOOD Al J.F.N & RAHAL, IJ.P
/~Steph~/n L. Grose '
Dated: September /~, 2001
KEEFER WOOD *a~LLEN & RAHAL, LLP
21 o WALNUT STREE'F
IN THE COURT OF COMMON PLEAS
CUMBERI.AND COUNTY, PENNSYLVANIA
JFC PESONNEL, INC.
d/b/a JFC Pcrsonncl Agency,
Plaintiff
IlRIAN A. LEACH,
Defendant
Civil Action Equity
Civil Division
No. 01 5209 EquityTcrm
SUMMARY OF SWORN STATEMENT OF STEPHEN ST. JOHN
BREACll OF FIDUCIARY DUTY
1. Steve was approached by Brian in or around March or Ap~dl 2001, to start an
cmploymcnt ugcncy busincss that would directly compete with JFC. (Page 13, lines 8-19)
2. Brian wanted Steve to quit JFC and work thc new business Recruiters Consulting
International ("RCI") by himself. Brian was going to wait until he had collected all of his
income fi'om JFC because it would take some time for cash flow to start for RCI. (Page 16, lines
9-22)
3. Brian was in essence going to be working for both companies, collecting money
from both RCI and JFC. (Page 16, lines 23-25 and Page 17, lines I-4)
4. Brian advised Steve that lie was siphoning off business from JFC to thc uew
company RCI to sort of get things startcd, so that he could shift business over to RCI when it was
up und running. (Page 20, lines 19-25)
5. Brian went so far us to have thc papers necessary to obtain an EIN number for
RCL which was going to be called Recruiters Consulting International. (Page 26, lines 5 14)
6. Steve wanted to tell JFC about Brian's approaching him for two reasons. First lo
make sure JFC understood why his production figures were down and second to let them know
that Briau was attempling to recruit JFC people. (Page 37, lines 16 23)
7. Brian was not doing as much work as lie could be doing at JFC because he was
attempting to hold some work for RCI. (Page 40, lines 4 11 )
8. Brian was going to approach his contacts at Highmark and Rite Aid to see if he
could continue to make placements for them, but without IFC finding out. (Page 41, lines 18-25)
9. Brian wanted to circumvent the non compete by servicing those clients, but doing
it on the QT or under the table so it wouldn't be determined by IFC. (Page 44, lines 9-13)
10. Brian refused to work with Steve in June or July after he was told that Steve was
not going to go along with him, which had an impact on Steve's revenues as well as JFC's
revenues. (Page 51, lines 16-25 and Page 52, lines 1-2)
11. Steve's productivity fell off because Brian refused to place his candidates, so
Steve made a comment to Brian that he was not going to jeopardize his job to save Brian's
interests. (Page 53, lines 5-15)
12. Just before Steve resigned, things started picking up again because Brian started
placing more of his candidates after Steve spoke with him. (Page 54, lines 10-21)
IT WAS BRIAN'S IDEA TO START RCI
1. Steve was approached by Brian in or around March or April 2001, to start an
employment agency business that would directly compete with IFC. (Page 13, lines 8-19)
2. Brian was going to primarily be doing the financing for the new company. (Page
19, lines 3-6)
3. Brian selected and contacted the first attorney, Rosemary McDermott. (Page 21,
lines 11-14)
4. Steve told Brian he changed his mind and didn't want to go through with it
roughly in the April to May time frame. (Page 29, lines 22-25 and Page 30, lines 1-2)
5. One of the reasons Steve didn't go with Brian was because of Brian's greed. He
wanted Steve to pay him $10,000 for coming up with the idea after the first year. (Page 32,
lines 12-17)
6. Brian paid the entire $500 retainer for the first attorney. (Page 33, lines 10-13)
7. The second attorney that was approached by Brian to create the appropriate
corporation or limited liability company was Leslie Powell. (Page 33, lines 15-17)
2
BREACH OF COVENANT NOT TO COMPETE
1. Brian was going to primarily be doing the financing for the new company. (Page
19, lines 3-6)
2. Both Brian and Steve were going to work out of their respective homes for the
new company, which would have been within the seventy-five (75) mile radius of any IFC office.
(Page 22, lines 9-23)
3. RCI was going to have two locations. One was Brian's home and one was Steve's
home. (Page 23, lines 4-7)
IRREPARABLE HARM
1. RCI did not need a storefront for that type of business. (Page 23, lines 11-17)
2. When you build up trust as a recruiter, they know you can go out and get the
candidates, so they are willing to call Brian with open job orders for people they need to come to
work for their organization. You need time to develop that relationship. (Page 40, lines 19-25)
3. Brian was going to approach his contacts at Highmark and Rite Aid to see if he
could continue to make placements for them, but withot~t IFC finding out. (Page 41, lines 18-25)
4. There is no way you could really track down whether Brian is using candidates or
not when he leaves with the candidates. So if Brian is allowed to compete, we won't be able to
quantify the damage this could do. (Page 47, lines 5-12)
Respectfully submitted,
KEEFER WOOD Al I .F~N & RAHAL, 1 l.v
Dated: September . .
2001
S~I~EPHEN L. GROSE
I.D. # 31006
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorneys for Plaintiff, IFC Personnel, Inc.
3
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Frank P. Clark, Esquire
134 Sipe Avenue
Hummelstown, PA 17036
KEEFER WOOD AT I.EN & RAHAL, T.LP
StephSh L. Grose
Dated: September [~, 2001
JFC PERSONNEL, INC.,
D/B/A JFC PERSONNEL
AGENCY,
Plaintiff
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
No. 01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 13th day of September, 2001,
upon consideration of Plaintiff's Petition for Special
Injunction or Preliminary Injunction, and following a
hearing held on this date, the record is declared closed,
and the matter is taken under advisement.
By the Court,
,Wesley Ol~Jr.
Stephen L. Grose, Esquire
Elizabeth J. Goldstein, Esquire
415 Fallowfield Road
Suite 102
Camp Hill PA 17011
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
wcy
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PESONNEL, INC.
d/b/a JFC Personnel Agency,
Plaintiff
Civil Action - Equity
BRIAN A. LEACH.
Defendant
Civil Division
No. 01-5209 Equity Term
ACCEPTANCE OF SERVICE
I, Frank P. Clark, Esquire, hereby confirm that I am counsel for the defendant in the
above matter and that I am authorized to accept service of the complaint on his behalf.
Frank P. Clark
Dated:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC., :
d/b/a JFC PERSONNEL AGENCY :
Plaintiff,
V.
BRIAN A. LEACH
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
To:
NOTICE TO PLEAD
JFC Personnel, Inc.
c/o Stephen L. Grose
KEEFER, WOOD, ALLEN & RAHAL
210 Walnut Street
Harrisburg, PA 17101
YOU ARE HEREBY NOTIFIED to file a written response to the enclosed New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted:
Dated: October 22, 2001
CLARK LAW OFFICE
Frank P. Clark
Attorney I.D. #35443
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, 1NC., :
dfo/a JFC PERSONNEL AGENCY :
Plaintiff,
V.
BRIAN A. LEACH
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
JURY TRIAL DEMANDED
ANSWER TO COMPLAINT WITH NEW MATTER, COUNTERCLAIM,
CROSS-CLAIM AND ACTION FOR DECLARATORY JUDGMENT
Defendant Brian A. Leach, by and through his attorneys, Clark Law Office, answers the
Complaint in the above captioned matter together with New Matter, and files a Counterclaim,
Cross-Claim and Action for Declaratory Judgment. In support thereof, Mr. Leach avers as
follows:
ANSWER TO COMPLAINT
1. Admitted on information and belief
2. Admitted.
3. Denied as stated. To the contrary, Mr. Leach was formerly an employee of JFC, but
was terminated on or about September 7, 2001.
4. After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
5. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, after reasonable investigation, Mr. Leach is
without sufficient knowledge or information to admit or deny and the averment is
therefore denied.
6. Admitted.
7. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach admits that on or about October
22, 1990, he signed the document attached as Exhibit "A" but denies the remainder of
the averment.
8. The averment is a legal conclusion to which no response is required and is therefore
denied.
9. Denied as stated. Although Mr. Leach denies that a document constitutes a "contract,"
Mr. Leach was employed by JFC as a Technical Recruiter in Camp Hill and served in
that capacity or as a Search Consultant, until September 7, 2001, when JFC terminated
his employment.
10. Denied as stated. To the contrary, Mr. Leach worked full time for JFC in the Camp Hill
Office; beginning in or about 1994, he reported to the Camp Hill Office Mondays
through Thursdays; beginning in or about 1997, he reported to the Camp Hill Office on
Mondays, Tuesdays and Thursdays; beginning in June 2001, he reported to the Camp
Hill Office on Mondays and Thursdays.
11. Denied as stated. To the contrary, Mr. Leach worked full time for JFC, and worked in
the field or out of his residence in Gettysburg on those days when he did not report to
the Camp Hill Office.
12. Denied as stated. To the contrary, Mr. Leach's job duties included recruiting full- and
part-time computer and technical personnel at the manager level and below to fill
vacancies at JFC or client employers.
13. Denied that JFC earns a placement fee when placement is made at JFC; otherwise
admitted.
14. Admitted as to all except "medical benefits;" to the contrary, Mr. Leach received dental
benefits from JFC but never received medical benefits from JFC.
15. Denied. To the contrary, in or about 1990 JFC provided Mr. Leach with minimal
employer contacts and employment candidates; thereafter Mr. Leach on his own and
with no substantial assistance from JFC established a wide network of employers and
candidates for positions.
2
16.
17.
18.
19.
20.
21.
22.
While Mr. Leach is without sufficient knowledge or information to comprehend what
constitutes "many of Mr. Leach's current employer clients," the averment is
nonetheless denied. To the contrary, Mr. Leach essentially built a computer and
technical placement group at JFC and the clients he serviced were predominantly either
technical placements not previously provided by JFC or new businesses not in
existence prior to Mr. Leach's employment with JFC.
After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that JFC expended,
shared or provided the enumerated items or matters and the averment is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that JFC expended,
shared or provided the enumerated items or matters and the averment is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied, as to the contrary,
in March 2001, Mr. Leach began to investigate the formation of a noncompeting entity
in the State of Maryland. By way of further answer, in June 2001, Mr. Leach terminated
the investigation without completing the formation of said noncompeting entity. By
way of further answer, at all relevant times, Mr. Leach exercised his best efforts on
behalf of JFC.
Denied as stated. To the contrary, Mr. Leach was employed by JFC up until September
7, 2001 and used his best efforts on behalf of JFC through and even beyond that date.
Denied. To the contrary, Mr. Leach investigated the formation of a noncompeting entity
in the State of Maryland to be named "Recruiting Consultants International, LLC." By
way of further answer, in June 2001, Mr. Leach terminated the investigation without
completing the formation of said noncompeting entity. By way of further answer, at all
relevant times, Mr. Leach exercised his best efforts on behalf of JFC.
23. Denied as stated. To the contrary, the IRS issued an employer identification number for
"Recruiting Consultants International, LLC."
24. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and did not use or anticipate using JFC
employees.
25. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC resources to the course of his employment with JFC.
26. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and did not "recruit current JFC
employees."
27. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and, to the extent he possessed "trade
secrets" of JFC, Mr. Leach reasonably restricted his use of the same to the course of his
employment with JFC.
28. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
resumes directed to JFC to the course of his employment with JFC.
29. Admitted. By way of further answer, said web sites are in the public domain, accessible
to any person having internet access.
30. After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
31. The averment is a legal conclusion to which no response is required and is therefore
4
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
"posting privileges" to the course of his employment with JFC.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
COUNT I
Paragraphs 1 through 34 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that he has a "competing
business." After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny the remainder of the averment and the same is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, after reasonable investigation, Mr. Leach is
without sufficient knowledge or information to admit or deny the remainder of the
averment and the same is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
5
42.
The averment is a legal conclusion to which no response is required and is therefore
denied.
43.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that he is "poised to
operate" a entity that never existed and that even if its formation had been completed
would nonetheless have done business in a noncompeting manner in a state where JFC
does no business.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNTII
45.
46.
Paragraphs 1 through 44 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied.
47.
The averment is a legal conclusion to which no response is required and is therefore
denied.
48.
The averment is a legal conclusion to which no response is required and is therefore
denied.
49.
The averment is a legal conclusion to which no response is required and is therefore
denied.
50.
51.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that there were any
"violations" to disclose.
The averment is a legal conclusion to which no response is required and is therefore
denied.
6
52.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNT III
53.
54.
55.
Paragraphs 1 through 52 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied, as to the contrary,
Mr. Leach was a Search Consultant not an Executive Recruiter. After reasonable
investigation, Mr. Leach is without sufficient knowledge or information to admit or
deny the remainder of the averment and the same is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
56.
57.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and did not "recruit JFC employees."
The averment is a legal conclusion to which no response is required and is therefore
denied.
58.
The averment is a legal conclusion to which no response is required and is therefore
denied.
59.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
7
60.
61.
COUNT IV
Paragraphs 1 through 59 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied.
62.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNT V
63. Paragraphs 1 through 62 are incorporated by reference as if set forth in full.
64. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC resources to the course of his employment with JFC.
65. The averment is a legal conclusion to which no response is required and is therefore
denied.
66.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNT VI
67.
68.
Paragraphs 1 through 66 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
8
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC trade secrets to the course of his employment with JFC. By way of further answer,
JFC's reference to the term "best practices" is meaningless and the same is therefore
denied.
69.
The averment is a legal conclusion to which no response is required and is therefore
denied.
70. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC trade secrets to the course of his employment with JFC.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNT VII
71. Paragraphs 1 through 70 are incorporated by reference as if set forth in full.
72. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and thus could not have engaged in the
alleged conduct on behalf of a "competing company."
73. The averment is a legal conclusion to which no response is required and is therefore
denied.
74.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
75.
76.
77.
78.
79.
80.
81.
82.
83.
NEW MATTER
Mr. Leach incorporates his responses to paragraphs 1 through 74 above as if set forth in
full.
The Complaint fails to state a claim on which relief can be granted.
The Complaint fails to properly plead a cause of action against Mr. Leach under
Pennsylvania Law.
JFC brought this action on behalf of"JFC Personnel Agency" prior to registering "JFC
Personnel Agency" as a fictitious name with the Commonwealth of Pennsylvania,
Department of State, Corporation Bureau.
On information and belief, JFC has failed to pay the civil penalty required under 54
Pa.C.S. §331.
JFC is barred from instituting or maintaining this action on behalf of JFC Personnel
Agency.
JFC terminated Mr. Leach's employment on or about September 7, 2001.
By terminating Mr. Leach's employment, JFC terminated the effect of the purported
"restrictive covenant" under the doctrine established in Insulation Corp. of America v.
Brobston, 667 A.2d 729 (Pa. Super. 1995).
JFC breached its obligations under the document that JFC purports to constitute a
"restrictive covenant," thereby extinguishing any obligations on the part of Mr. Leach
under said document.
84. The document that JFC purports to constitute a "restrictive covenant" is unreasonable
as to geographic scope and time duration and is unenforceable.
85. The Complaint is barred by the doctrine of estoppel.
86. The Complaint is barred by the doctrine of waiver.
87. The Complaint is barred by the doctrine of laches.
88. The Complaint is barred by the doctrine of unclean hands.
89. JFC has not suffered any damages as a result of the matters alleged in the Complaint.
10
90.
To the extent that JFC has suffered any damages, which Mr. Leach denies, then said
damages are proximately caused by JFC's acts or failures to act and are not attributable
to Mr. Leach.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
91.
92.
93.
94.
95.
96.
97.
98.
COUNTERCLAIM, CROSS-CLAIM
AND ACTION FOR DECLARATORY JUDGMENT
Paragraphs 1 through 90 are incorporated by reference as if set forth in full.
Additional Defendant James F. Carchidi is an adult resident of the Commonwealth,
having an address for the service of process at 1520 Market Street, Camp Hill, PA.
Additional Defendant Linda Carchidi is an adult resident of the Commonwealth, having
an address for the service of process at 1520 Market Street, Camp Hill, PA.
Additional Defendant James F. Carchidi is an officer or director of JFC.
Additional Defendant Linda Carchidi is an officer or director of JFC.
At or about the same time that JFC alleged matters contained in its Complaint, JFC, on
its own and/or acting through Additional Defendants, have directed actions against Mr.
Leach related to JFC's allegations in the Complaint that are thus founded upon the
transaction, occurrence, or series of transactions or occurrences out of which the
Complaint arose.
COUNT I
Brian A. Leach v. JFC Personnel, Inc.
Breach of Contract
Paragraphs I through 96 are incorporated by reference as if set forth in full.
JFC promised payment of money to Mr. Leach (the "Compensation") as his
11
compensation from employment and promised to reimburse expenses that Mr. Leach
incurred in the course of his employment with JFC.
99. The Compensation was based on commissions earned by Mr. Leach's efforts to place
employee candidates with employers.
100. For all relevant periods, the Compensation equaled 50% of the agreed-payment by the
client-employer to JFC.
101. JFC terminated Mr. Leach's employment on September 7, 2001.
102. As of September 7, 2001, Mr. Leach's efforts placed candidates with employers for an
agreed payment and the resulting Compensation due to Mr. Leach as follows:
Candidate Employer Agreed Payment Compensation Due
Karin Vargo U~TA~kD $18,750 $9,375.00
Alex Richardson Adelphia $14,000 $7,000.00
Marcus Brannac Regency $ 3,159 $1,579.50
Paul Bashen Exel $18,750 $9,375.00
Jason Tuomy Adelphia $18,250 $9,125.00
103. As of September 7, 2001, and thereafter, JFC has failed to pay Mr. Leach the
Compensation in full or when due, and has failed to reimburse Mr. Leach for expenses
incurred in the course of his employment, without justification and in breach of JFC's
promises to Mr. Leach.
104. JFC's promise to pay Compensation and/or expenses to Mr. Leach constitutes an
agreement.
105. JFC is in breach of said agreement.
106. JFC has refused Mr. Leach's demands to pay Compensation as previously agreed.
107. As a direct consequence of the breach, Mr. Leach has suffered damages in the amount
of the unpaid Compensation and expenses, plus interest.
WHEREFORE, Brian A. Leach demands judgment in his favor and against JFC
Personnel, Inc., in an amount in excess of the jurisdictional limit for mandatory arbitration of
claims, together with interest plus such other further relief as may be just.
12
COUNT II
Brian A. Leach v. JFC Personnel, Inc., James, F. Carchidi and Linda Carchidi
Pennsylvania Wage Payment and Collection Law
108. Paragraphs 1 through 107 are incorporated by reference as if set forth in full.
109. YFC is an "employer" as that term is defined in thc Wage Payment and Collection Law,
Act of Suly 14, 1977, P.L. 82, as amended ("WPCL"), 43 P.S. §260.1 et seq.
110. Additional Defendants Sames F. Carchidi and Linda Carehidi are each an "employer" as
that term is defined in the WPCL.
111. The Compensation constitutes "wages" as that term is defined in the WPCL.
112. Mr. Leach is an employee to whom wages are payable within the meaning of the
WPCL.
113. JFC and/or Additional Defendants have failed to pay wages to Mr. Leach despite his
demand.
114. JFC's and/or Additional Defendants' non-payment of wages was done deliberately,
wantonly and in a bad faith refusal to avoid a legal obligation and is not justified within
the terms of the WPCL, entitling Mr. Leach to liquidated damages therein.
115. JFC's and/or Additional Defendants' nonpayment of wages entitles Mr. Leach to an
award of costs and reasonable attorney fees from JFC and/or Additional Defendants
pursuant to the WPCL.
WHEREFORE, Brian A. Leach demands judgment in his favor and against JFC
Personnel, Inc., James F. Carchidi, and Linda Carchidi, jointly and severally, in an amount in
excess of the jurisdictional limit for mandatory arbitration of claims, together with costs,
reasonable attorneys fees, interest and such other further relief as may be just.
COUNT III
Brian A. Leach v. JFC Personnel, Inc., and James F. Carchidi
Defamation
116. Paragraphs 1 through 115 are incorporated by reference as if set forth in full.
13
117. On information and belief, JFC and/or Additional Defendant James F. Carchidi have
made one or more false statements about Mr. Leach, including but not limited to, that
he was terminated from employment with JFC for "willful misconduct."
118. Said statements were communicated to others without privilege, and were intended to
harm Mr. Leach's reputation so as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him.
119. Said statements ascribed conduct, character, or a condition to Mr. Leach that would
adversely affect his fitness for the proper conduct of his lawful business, trade or
profession.
120. JFC and/or Additional Defendant James F. Carchidi acted in reckless disregard of
whether said statements were false or had a tendency to defame Mr. Leach.
121. The statements have actually affected Mr. Leach's reputation and/or have caused
personal humiliation to Mr. Leach, entitling Mr. Leach to recover damages from JFC
and/or Additional Defendant James F. Carchidi in an amount to be determined at trial.
WHEREFORE, Brian A. Leach demands judgment in his favor and against JFC
Personnel, Inc., and James F. Carchidi, jointly and severally, in an amount in excess of the
jurisdictional limit for mandatory arbitration of claims, together with interest plus such other
further relief as may be just.
COUNT IV
Brian A. Leach v. JFC Personnel, Inc.
Action for Declaratory Judgment
122. Paragraphs 1 through 121 are incorporated by reference as if set forth in full.
123. Pursuant to 42 Pa.C.S. §§ 7531 through 7541, this action seeks a Declaratory Judgment
regarding an alleged agreement as between Mr. Leach and JFC purporting to contain a
"restrictive covenant." Mr. Leach specifically seeks the Court's construction of the
"restrictive covenant" and a declaration as to the parties' rights, status, and legal
relations thereunder.
124. The issues involved in this matter are ripe for judicial determination as an actual
14
125.
controversy exists between the parties and litigation is imminent and inevitable. JFC
has asserted that action Mr. Leach may take in the future constitutes a breach of the
"restrictive covenant" in question.
Pursuant to Pa. R.C.P. 2130(a), this Court is the proper venue for the instant declaratory
judgment action as Cumberland County is where JFC regularly conducts business in
Cumberland County, and also the site of a transaction or occurrence out of which this
action arose.
126. JFC engaged in the business of finding and placing temporary and permanent
personnel.
127. Mr. Leach was hired by JFC on or about October 31, 1990 to work as a Technical
Recruiter.
128. JFC alleges that Mr. Leach executed a "restrictive covenant" on or about October 22,
1990, purporting to contain restrictions upon Mr. Leach's ability to compete with JFC.
A copy of the alleged "restrictive covenant" is attached to JFC's Complaint as Exhibit
"A" and incorporated herein by reference.
129. On or about September 7, 2001, JFC terminated Mr. Leach's employment.
130. Having been terminated fi.om JFC, Mr. Leach has concluded that his career prospects
can be satisfied only by operating or working in his field as a personnel searcher.
131. The "restrictive covenant" purports to restrict Mr. Leach's ability to establish an entity
that will engage in the "employment agency business."
132. Mr. Leach seeks clarification as to the enforceability of the "restrictive covenant" given
the circumstances surrounding his termination.
133. Mr. Leach believes and hereby avers that the terms of the "restrictive covenant," as
well as the circumstances surrounding his termination, have rendered the "restrictive
covenant" null and void and otherwise unenforceable by JFC.
134. 42 Pa. C.S. § 7533 provides in pertinent part as follows:
Any person interested under a... written contract.., may have determined any
question of construction or validity arising under the instnanent.., and obtain a
15
135.
136.
declaration of rights, status or other legal relations thereunder.
Mr. Leach was performing faithfully for JFC in a manner warranting continued
employment at the time of his termination.
Prior to his termination of employment, Mr. Leach had not taken any action to establish
an employment agency business that would violate the alleged "restrictive covenant"
but rather investigated the creation of a Maryland corporation that would not compete
with JFC.
137.
Mr. Leach was ready, willing and able to faithfully continue his employment with JFC
at the time of his termination.
138. JFC's termination of Mr. Leach's employment has rendered the alleged "restrictive
covenant" null and void and otherwise unenfomeable, Insulation Corp. of America v.
Brobston, 667 A.2d 729 (Pa. Super. 1995); All-Pak, Inc. v. ,Johnston, 694 A.2d 347
(Pa. Super. 1997).
139. The "geographic scope" of the Agreement purports to restrict Mr. Leach's ability to
engage in the employment agency business anywhere within a 75 mile radius of any
city in which a JFC office is located.
140. The Agreement is overly broad as to its geographic scope and should not be enforced
by this Honorable Court. Sidco Paper Co. v. Aaron, 351 A.2d 250 (Pa. 1976).
141. The Agreement in question is an unreasonable restraint on Mr. Leach's ability to
engage in his profession or trade.
142. Enforcement of the Agreement would work an undue hardship on Mr. Leach effectively
prohibiting him from earning a living.
143. Enforcement of the Agreement is not necessary to protect the legitimate business
interests of JFC.
144. A declaratory judgment should enter pursuant to 42 Pa.C.S. §7533 to determine
Leach's rights pursuant to the "restrictive covenant."
WHEREFORE, Defendant Brian A. Leach respectfully requests judgment in his favor
and against JFC and asks that this Honorable Court: (1) determine the foregoing questions of
16
construction under the "restrictive covenant;" (2) declare the rights, status and the legal
relations of the parties under the "restrictive covenant;" (3) hold that the terms of the
"restrictive covenant" do not limit or preclude Mr. Leach from engaging in or being employed
by a personnel staffing service in the State of Maryland or the Commonwealth of
Pennsylvania; (4) find that Mr. Leach is free to establish a business that is engaged in
personnel staffing services in the State of Maryland or the Commonwealth of Pennsylvania;
and (5) award Mr. Leach costs of this action, including reasonable attorneys fees.
Respectfully submitted,
CLARK LAW OFFICE
Dated: October 22, 2001
By:
Frank P. Clark, Attorney I.D. #35443
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
17
VERIFICATION
The undersigned, BRIAN A. LEACH, hereby verifies that the facts set forth in the
foregoing Answer to Complaint With New Matter, Counterclaim, Cross-Claim and
Action for Declaratory Judgment are true and correct to the best of his knowledge,
information and belief and further states that statements made herein are made subject to
the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.
Dated: October 18, 2001
BRIAN KT. L~A~H
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a tree and correct copy of the
foregoing Answer to Complaint with New Matter, Countemlaim, Cross-Claim and Action for
Declaratory Judgment upon the following below-named party by depositing same in the U.S.
Mail, postage pre-paid, at Camp Hill, Pennsylvania, this 22na day of October, 2001.
SERVED UPON:
Stephen L. G-rose
Keefer Wood Allen & Rahal, LLP
210 Walnut Slreet
Harrisburg, PA 17101
Frank P. Clark
18
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC., :
d/b/a JFC PERSONNEL AGENCY :
BRIAN A. LEACH
Vo
Plaintiff
Defendant
JAMES F. CARCHIDI and
LINDA CARCHIDI
Additional Defendants
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
JURY TRIAL DEMANDED
PRAECIPE TO SUBSTITUTE CAPTION PAGE
TO THE PROTHONOTARY:
Kindly substitute the attached Caption page for the first page of Defendant Brian
A. Leach's Answer to Complaint with New Matter, Counterclaim, Cross-Claim and
Action for Declaratory Judgment filed on October 23, 2001.
Dated: November 7, 2001
CLARK LAW OFFICE
By:
Frank P. Clark, I.D. #35443
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
(717) 731-8600
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC., :
d/b/a JFC PERSONNEL AGENCY :
BRIAN A. LEACH
Plaintiff
Defendant
JAMES F. CARCHIDI and
LINDA CARCHIDI
Additional Defendants
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
JURY TRIAL DEMANDED
ANSWER TO COMPLAINT WITH NEW MATTER, COUNTERCLAIM,
CROSS-CLAIM AND ACTION FOR DECLARATORY JUDGMENT
Defendant Brian A. Leach, by and through his attorneys, Clark Law Office, answers the
Complaint in the above captioned matter together with New Matter, and files a Counterclaim,
Cross-Claim and Action for Declaratory Judgment. In support thereof, Mr. Leach avers as
follows:
ANSWER TO COMPLAINT
Admitted on information and belief
Admitted.
Denied as stated. To the contrary, Mr. Leach was formerly an employee of JFC, but
was terminated on or about September 7, 2001.
After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, after reasonable investigation, Mr. Leach is
without sufficient knowledge or information to admit or deny and the averment is
therefore denied.
6. Admitted.
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a tree and correct
copy of the foregoing Praecipe to Substitute Caption Page and Caption page upon
the following below-named party by depositing same in the U.S. Mail, postage pre-
paid, at Camp Hill, Pennsylvania, this 7th day of Novamber, 2001.
SERVED UPON:
Stephen L. G-rose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.
d/b/a JFC Personnel Agency,
BRIAN A. LEACH,
Plaintiff
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
PLAINTIFF'S PRELIMINARY OBJECTIONS TO
THE ANSWER WITH NEW MATTER, COUNTERCLAIM, CROSS-CLAIM AND
ACTION FOR DECLARATORY JUDGMENT FILED BY THE DEFENDANT
I. INTRODUCTORY STATEMENT
On September 4, 2001, plaintiff, JFC Personnel, Inc. ("IFC"), filed a complaint in equity
against defendant, Brian A. Leach ("Mr. Leach"), seeking injunctive relief (Count I) and
asserting claims for fraud (Count II), to~tious interference with business relations (Count IlI),
breach of contract (Count IV), conversion (Count V), disclosure of trade secrets (Count VI), and
breach of fiduciary duty (Count VII). The preliminary injunction hearing was held on Thursday,
September 13, 2001, and the Court entered an order dated September 14, 2001, denying JFC's
request for a preliminary injunction without prejudice to its fight to file a new petition. Mr.
Leach filed an answer to the complaint with new matter, counterclaim, cross-claim and action for
declaratory judgment on or about October 22, 2001. While IFC does not necessarily agree with
nor accept the averments made in the answer and new matter, it has no objection to the manner in
which it was pled. However, the same cannot be said for the remainder of the pleading.
In the portion of the pleading entitled "Counterclaim, Cross-Claim and Action for
Declaratory Judgment," Mr. Leach refers to James F. Carchidi and Linda Carchidi, officers and
directors of JFC, as "additional defendants." No mention is made as to what Pennsylvania Rule
of Civil Procedure provides the basis for their joinder as additional defendants nor are they listed
on the caption of the pleading.
In the pleading, Mr. Leach asserts a breach of contract claim against YFC seeking
commissions he contends were owed to him at the time of his termination of employment on
September 7, 2001 (Count I), a Wage Payment and Collection Law ("WPCL") action against
JFC, James Carchidi and Linda Carchidi, individually, as additional defendants (Count II), a
claim against JFC and James Carchidi, individually, for defamation (Count Ill), and a claim
against JFC for declaratory judgment relief pursuant to 42 Pa. C.S. § 7531, et seq. (Count IV).
The declaratory judgment claim seeks to have the restrictive covenant, which was the basis for
JFC's complaint, declared invalid.
JFC does not object to Count I (Breach of Contract Claim Against JFC Personnel, Inc.)
as, if proven, it constitutes a valid counterclaim under Pennsylvania Rule of Civil Procedure
1031. Further, JFC does not object to Count IV (Action for Declaratory Judgment Against JFC
Personnel, Inc.) since it involves the restrictive covenant at issue before the Court on JFC's
complaint, and does not attempt to join any additional parties to the litigation. However, JFC
does object to Counts Il and 1]I of the "Counterclaim and Cross-claim" section of Mr. Leach's
pleading for the reasons set forth below.
2
ri. PRELIMINARY OBJECTIONS
A. JFC asserts preliminary objections to Count ri pursuant to Pennsylvania Rule of Civil
Procedure 1028(a)(2), Failure of a Pleading to Conform to Law or Rule of Court.
1. In Count ri, Mr. Leach asserts a claim under the WPCL against JFC and James
Carchidi and Linda Carchidi, individually.
2. In Count 11, Mr. Leach refers to James Carchidi and Linda Carchidi as "additional
defendants" but does not specify under what section of the Pennsylvania Rules of Civil
Procedure he is relying upon to join them to this action as additional defendants.
3. They clearly cannot be joined as additional defendants under Rule 2252(a)(1), (2)
or (3), since they are not solely liable to JFC, liable over to JFC, or jointly and severally liable to
JFC on JFC's causes of action against Mr. Leach.
4. Accordingly, James Carchidi and Linda Carchidi can only be joined as additional
defendants if appropriate under Rule 2252(a)(4) and only if they are liable to the joining party
(Mr. Leach) on any cause of action arising out of the transaction or occurrence or series of
transactions or occurrences upon which JFC's causes of action are based.
5. It is asserted that the WPCL action does not arise out of the transaction or
occurrences or series of transactions or occurrences upon which JFC's causes of action are based
in its underlying action.
6. The factual background relevant to the WPCL claim is entirely dissimilar to
whether Mr. Leach is liable under the claims asserted by JFC. Further, the WPCL claim involves
3
entirely different legal questions than those claims asserted against Mr. Leach by IFC in its
complaint.
7. Further, even if Rule 2252(a)(4) were applicable, since neither James nor Linda
Carchidi are parties to the action, the appropriate manner in which to join them as additional
defendants is by filing a praecipe for a writ or a complaint (see, Rule 2252Co)), in accordance
with the procedure set forth in Rule 2252(c).
8. Finally, under Rule 2256(a), if the original defendant (Mr. Leach) asserts a
counterclaim not founded upon the transaction, occurrence or series of transactions or
occurrences out of which the original cause of action arose (IFC's complaint), he may not join an
additional defendant (James and Linda Carchidi).
9. Since Mr. Leach elected to assert a counterclaim in the nature of a WPCL claim
and a defamation claim against IFC, which are not founded upon the same transaction,
occurrence or series thereof as the claims set forth in IFC's complaint, he cannot join James
Carchidi and Linda Carchidi as additional defendants on the WPCL action or James Carchidi on
the defamation action.
B. IFC asserts oreliminarv ob_iections as to Count III in accordance with Pennsylvania Rule
of Civil Procedure 1028(a)(2). Failure of a Pleading to Conform to Law or Rule of Court
1028 and (3) Insufficient S~ecificitv in a Pleading.
RULE 1028(A)(2)
1. In Count m, Mr. Leach asserts a claim of defamation against IFC and James
Carchidi, individually.
4
2. The same objections as to joining James Carchidi as an additional defendant as set
forth above are incorporated here by reference in that he is not properly joined as an additional
defendant nor can he be so joined since the defamation claim does not arise under the same set of
facts or circumstances as to the claims asserted by JFC in its complaint. Further, his joinder as
an additional defendant is precluded by Rule 2256(a).
RULE 1028(A)(3)
3. To state a cause of action for defamation in Pennsylvania, a complaint must
contain averments of fact which, if proven, would establish (1) the defamatory character of the
communication, (2) the publication of the communication to a third party, (3) that the
communication refers to the plaintiff, (4) that the third party's understanding of the
communication is defamatory in character, and (5) injury.
4. In addition, a complaint for defamation must, on its face, identify exactly what
was said and to whom the allegedly defamatory statements were made, which the pleading and
Count Ill do not provide.
5. An allegation that merely avers an alleged defamatory statement was published to
an unidentified third patty is defective.
6. Count III of Mr. Leach's pleading does not contain all of the elements necessary
with sufficient specificity to state a claim for defamation.
5
C. JFC asserts a preliminary obiection to the Praecipe to Amend the Caption filed bv Mr.
Leach under Pa. R. Civ. Pa. 1028(a)(2) as not conforming to law or role of court.
1. By cover letter dated November 7, 2001, counsel for JFC received a Praecipe to
Substitute Caption Page filed by counsel for Mr. Leach, seeking to add James F. Carchidi and
Linda Carchidi to the caption of this matter as additional defendants.
2. Rule 1033 of the Pennsylvania Rule of Civil Procedure provides that any party,
either by consent of the adverse party or by leave of Court, may amend his pleading by filing a
motion with the Court.
3. There is no provision in the Pa. R. Civ. P. that allows amendment of a pleading by
a praecipe filed with the Prothonotary.
Amendment of pleadings is only by motion to the Court, either opposed or
unopposed.
5.
As such, the praecipe filed by counsel for Mr. Leach is improper and ineffective in
attempting to join James Carchidi and Linda Carchidi as additional defendants to this action.
6
m. CONCLUSION
WHEREFORE, JFC requests that this Honorable Court dismiss Counts 1I and 11I of the
Cross-claim/Counterclaim section of Mr. Leach's pleading for the reasons set forth above. In the
alternative, Mr. Leach should be required to re-plead his claims in accordance with Rule 2252(b)
and (c) and with the specificity requested above.
Respectfully submitted,
KEEFER WOOD Al J.F.N & RAHAL, LLP
Dated: November 13, 2001 By
I.D. # 31006
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorneys for Plaintiff, JFC Personnel, Inc.
7
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Frank P. Clark, Esquire
3045 Market Street, 2na Floor
Camp Hill, PA 17011
Dated: November /3, 2001
KEEl=ER WOOD Al I.I~N & RAHAL, LLP
By ~/ (~~--~
S~ephen 0~. G-rose
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PESONNEL, INC.
d/b/a JFC Personnel Agency,
Plaintiff
BRIAN A. LEACH,
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
RESPONSES OF PLAINTIFF..IFC PERSONNEL. INC..
TO REQUESTS FOR ADMISSIONS OF BRIAN A. LEACH - FIRST SET
GENERAL OBJECTION
Plaintiff objects to subsections a, b and c in each of the requests, as they seek information
beyond that which is required to be produced under Pa. R.Civ. P. 4014. That Rule requires that if
a responding party objects, it must explain why it is objecting and further, it must admit or deny,
or partially admit or deny each request, which plaintiff has done. Further, with regard to all
responses, JFC has not yet had the opportunity to conduct discovery since the responsive
pleading to the complaint has not been completed. Therefore, it reserves the right to amend these
responses as appropriate when discovery is completed.
RESPONSES
1. Denied as stated. JFC Personnel, Inc. ("JFC") is a Pennsylvania corporation
incorporated in May 1975. It conducted business under the name of JFC Personnel Agency
because the term "agency" was purportedly required to be used by state regulations at that time.
Mr. Leach was well aware of the relationship between JFC Personnel Agency and JFC at the
time he was employed on October 22, 1990. Further, all checks paid to Mr. Leach for
compensation were drawn on the account of JFC Personnel Agency.
2. Admitted.
3. Denied as stated. It is admitted only that no fine has been requested from nor paid
by JFC to the Department of State for the use of JFC Personnel Agency as a fictitious name.
4. Denied. It is unclear from the request as stated whether documents that existed as
of September 14, 2001, are to be included. JFC contends the sworn affidavit of Stephen St. John
and all exhibits thereto, Mr. Leach's testimony at the preliminary injunction hearing regarding
the "trial balloon" and related documents would support its position that Mr. Leach violated or
intended to violate his restrictive covenant. Further, subsequent to September 14, 2001, the
Unemployment Compensation Board made a determination that Mr. Leach's actions show a
willful disregard of JFC's interests and that a warning to Mr. Leach was not required prior to his
dismissal.
5.
6.
7.
Denied as stated. See response to no. 4 above.
Denied as stated. See response to no. 4 above.
Denied. Mr. Leach misrepresented facts to James Carchidi, Karen Savage and
Steve Martin on September 6, 2001, and September 7, 2001, about his relationship with Mr.
Stephen St. John and whether or not he was involved in starting a new business. Initially he
denied any involvement whatsoever, then he recanted and admitted that he was involved in
starting a new business, but that it was Stephen St. John's idea. Subsequently he recanted that
2
testimony and told Mr. Martin that he did have an EIN number for a new business and that he
was planning on going into business with Mr. St. John for about six (6) months and then cut him
out, since he wouldn't be needed any longer.
8. Denied as stated. It is admitted that no placements were made to JFC's
knowledge, but discovery is ongoing. It is not known whether the individual referred to in Mr.
Leach's preliminary injunction hearing testimony as the "trial balloon" (the imbedded C++
programer) was actually placed or whether Mr. Leach simply requested the assistance of Stephen
St. John in finding an applicant from the personnel base at JFC. Since discovery is ongoing, JFC
reserves the right to supplement this response as appropriate.
9. Admitted, with the qualification that discovery is ongoing and JFC reserves
the right to supplement this response as appropriate.
10. Admitted, with the qualification that discovery is ongoing and IFC reserves
the right to supplement this response as appropriate.
11. Denied. Mr. Leach sought the assistance of Stephen St. John in finding an
applicant to fill an imbedded C++ programer position that Mr. Leach was attempting to fill for an
agency in the Philadelphia area, while both Mr. Leach and Mr. St. John were employees of IFC.
Mr. Leach solicited the assistance of Stephen St. John to fill that position and requested that he
do so using IFC's applicant data base without advising IFC of the same or having its approval to
do so. Accordingly, Mr. Leach attempted to place candidates outside his course of employment
with JFC on at least one occasion. Discovery is not yet complete and additional instances may
come to light.
3
12. Admitted to date, however, discovery is not complete and JFC reserves the
right to supplement this response as appropriate.
13. Admitted to date, however, discovery is not complete and IFC reserves the
right to supplement this response as appropriate.
14. Denied. Mr. Leach has breached his employment contract in that he attempted
and intended to breach the covenant not to compete. Further he breached his fiduciary duty to
work only for IFC and its interests and not to use their assets in the furtherance of some entity
other than IFC. He attempted to solicit other employees and engaged in activities in violation of
his covenant not to compete and he attempted to use candidates from IFC for placements with
another employment agency in the trial balloon (an imbedded C++ programer) situation.
Discovery is ongoing and IFC reserves the right to supplement this response as appropriate.
15. Denied. See response to no. 14 above. To the extent that the preliminary
injunction hearing was an abbreviated hearing and restricted dramatically the evidence that IFC
was permitted to address, there is additional testimony that IFC would introduce to substantiate
the allegations contained in response no. 14.
16. Denied as stated. Based upon information and belief, IFC avers that Mr.
Leach may have used online information for which IFC pays a subscription fee. Mr. Leach had
access to Internet job boards where IFC has paid subscriptions for job posting and to search
resume databases. The job boards include "Monster. com" and "HeadHunter.net," on a continual
basis. IFC also subscribes to other Intemet sites for trial periods when evaluating the usefulness
4
19.
20.
21.
reasons:
of job posting and resume retrieval boards. Mr. Leach had access to these at this home, as well
as at work. Discovery is ongoing and IFC reserves the right to supplement this response as
appropriate.
17. Denied as stated. It is not known at this juncture whether Mr. Leach used trade
secrets on behalf of a competing company or attempted to do so. Discovery is ongoing and JFC
reserves the right to supplement this response as appropriate.
18. Denied as stated. It is admitted that no damages appear to have been suffered as a
result of Mr. Leach attempting to violate this covenant not to compete because he did not do so
subsequent to IFC commencing this action. Since discovery is ongoing, it is not known whether
inappropriate placements have been made and therefore, JFC reserves the right to supplement
this response as appropriate.
Admitted.
Admitted, based upon the information and documentation reviewed to date.
Denied. Mr. Leach's employment with IFC was terminated for the following
It was believed that Mr. Leach had violated or was attempting to violate
his covenant not to compete.
It was believed that Mr. Leach breached his fiduciary duties (a) to act in
JFC's behalf, (b) not to attempt to take away IFC employees to start
competing businesses, (c) not to use IFC phones, computers or other
5
resources for his own use or starting up a competing company and (d) not
being forthright with JFC about his involvement with Stephen St. John and
the new entity when initially approached by JFC. He could not thereafter
be trusted.
22. Admitted that JFC's next regular pay day after JFC terminated Mr. Leach was
October 1, 2001, for commissions earned through September 30, 2001.
23. Denied as stated. With regard to the Vargo placement, the payment for the
placement was to be made in three (3) installments. The first installment of $6,250 was paid on
August 27, 2001, and because Mr. Leach was still an employee on that date, he received 45% of
the $6,250 in his August 31, 2001, pay. He received the other 5% in his bonus paid on
September 30, 2001. Accordingly, he has received his full 50% commission on the first
installment of $6,250, which was received by JFC while he was an employee. A second
installment of $6,250 was received by JFC on September 26, 2001. However, Mr. Leach was no
longer an employee and therefore the payment on the second and third installments would not be
due until the placement was permanent, as required by the employment agreement. While Mr.
Leach had performed all of his services by September 7, 2001, JFC had not received full payment
by that date and the employment agreement provided for different compensation after Mr.
Leach's employment was terminated.
24. Denied as stated. Mr. Richardson started employment on September 4, 2001, and
the payment of $14,000 was received by JFC on October 8, 2001. On December 4, 2001, Mr.
Leach will be paid a commission of $3,500, which is 25% of the $14,000, assuming Mr.
Richardson is still working as of that date.
25. Denied. Marcus Brannick did not commence work until September 10, 2001,
which was after the September 7, 2001 date, and payment was not received by JFC until October
9, 2001. Mr. Leach's commission will be paid on December 10, 2001, assuming Mr. Brannick is
still working as of that date.
26. Denied. Mr. Basben did not commence work until September 24, 2001, well after
the September 7, 2001 date. Further, payment was not received by JFC until October 8, 2001.
Therefore, commissions will not be due Mr. Leach until December 24, 2001, at which time he
will be paid his appropriate commission assuming Mr. Bashen is still working at that time.
27. Denied. Jason Tuomy did not commence work until October 1, 2001, well after
the September 7, 2001 date. Further, no payment was received by JFC. Assuming payment is
received by January 1, 2002, and Mr. Tuomy is still working as of that date, Mr. Leach will be
paid his commission.
28. Denied. See response to no. 23 above.
29. Denied. See response to no. 24 above.
30. Denied. See response to no. 25 above.
31. Denied. See response to no. 26 above.
7
32. Denied. See response to no. 27 above.
Respectfully submitted,
K~EFER WOOD Al J~F,N & RAHAL, LLP
Dated: November c~/~ , 2001
By
s:m0im n. oaoss'
I.D. # 31006
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorneys for Plaintiff, JFC Personnel, Inc.
8
VERIFICATION
The undersigned, Steve Martin, General Manager of JFC Personnel, Inc., hereby verifies
and states that:
4. He is authorized to sign this verification on behalf of JFC Personnel, Inc.;
2. The responses set forth in the foregoing Responses to Requests for Admissions
are true and correct to the best of his knowledge, information, and belief; and
3 He is aware that false statements herein are made subject to the penalties of 18
Pa.C.S. Sec. 4904, relating to unsworn falsification to authorities.
Steve Martin
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Frank P. Clark, Esquire
Clark Law Office
3045 Market Street
Second Floor
Camp Hill, PA 17011
Dated: November c~ , 2001
KEEFER WOOD Al J.EN & RAHAL,
By Stepl~en L. Grose
JFC PERSONNEL, INC.,
d/b/a JFC PERSONNEL
AGENCY,
Plaintiff
v.
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
No. 01-5209 EQUITY TERM
IN RE: TESTIMONY OF BRIAN LEACH
Proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on September 13, 2001, commencing at 3:09 p.m.
in Courtroom No. 1.
APPEARANCES:
Stephen L. Grose, Esquire
Elizabeth J. Goldstein, Esquire
For the Plaintiff
Frank P. Clark, Esquire
For the Defendant
0 0
INDEX TO WITNESS
FOR THE DEFENDkNT DIRECT
Brian Leach 3
CROSS REDIRECT RECROSS
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September 13, 2001
Courtroom No. 1
3:09 p.m.
MR. CLARK: We'd like to call Brian Leach.
Whereupon,
BRIAN LEACH
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. CLARK:
Q
please?
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
Would you state your name for the record,
Brian Leach.
And your address?
30 Roundtop Lane, Gettysburg, PA.
By whom were you last employed?
JFC.
What was your last day of work?
Last day I worked was Thursday.
September 6th?
September 6th.
What was your position?
Senior search consultant.
I believe there's some document that the
Plaintiff has presented to this Court that describes you as
an executive recruiter. Do you agree or disagree with that
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description of your position?
A I'm not an executive recruiter.
Q So you disagree with that?
A I disaHree with that.
Q What's an executive recruiter as compared to
a senior search consultant?
A Executive recruiter would be specifically, I
would be doing high level executives, vice president,
director, even president level positions. My positions are
strictly information technology.
THE COURT: I'll tell you what. You'll have
to move that microphone a little closer to your mouth.
THE WITNESS: My positions are strictly
computer positions, lower level, mid level, some project
management, but not executives.
BY MR. CLARK:
Q
A
Q
A
Q
A
Inc.?
You began work with JFC when?
October 31st, 1990.
From whom did you receive your paychecks?
JFC.
Was it JFC, JFC--
JFC Personnel at the time, yes.
THE COURT: So it was not JFC Personnel,
THE WITNESS: I can't specify whether it had
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Inc.
BY MR. CLARK:
Q
Agency?
A
JFC Personnel.
Q
you receive?
A
Q
A
Did you receive paychecks from JFC Personnel
I can't specify again. I just know it was
It could have been Agency.
When you began with JFC, what training did
I received no training.
What did your training consist of then?
I was given a desk of an employee who left.
I was replacing his position. He had approximately 50 to
100 candidates in his file, total, and a few companies.
And I knew the contact names of his companies. And that
was it. There was no training. It was like, I had two
years experience. It was expected that I would go ahead
and hit the ground, start making new contacts, start making
placements with these customers.
Q Did you replace an existing employee?
A Yes, I did.
Q Mow many days was that employee present in
the office when you were there?
A One day.
Q How much time did you have to spend with
that employee on that day?
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A
list with me,
Q
A couple hours. He went over his client
just a couple hours.
Did you receive any training in the methods
of the company?
A No, I did not. I still don't know what the
methods of the company are.
Q You still don't know?
A I still don't know what their methods are.
Q What was the basis for your compensation
when you began employment with the company?
A I started off on a salary. Potentially get
commission when I billed a certain amount. The salary was
22,000. It was 2000 a month, and he cut that after six
months. Jim Carchidi cut my salary after six months, said
I had not produced enough, and cut my salary to 18,000.
Then in July of that year, I asked him if I could go to
Highmark to work for three months. And he said, sure. And
I did not receive salary for those three months from JFC.
It was called Blue Shield at the time. They're now called
Highmark. And so my gross income for the year 1991 was
about $15,000.00, 14 to $15,000.00 from JFC.
Q
point in time,
A
problems of,
What was the quality of the economy at that
if you recall?
The economy was going through the Gulf War,
you know, businesses being concerned about how
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the country was going to do going through the war.
Q What implication did that have
business that you were in with your employ?
A
for the
Men was either hard to get or candidates
were reluctant to make job changes. It was very difficult.
Q What was the benefit to JFC when you agreed
to go to work for Highmark for a short period of time?
A Just did not have to pay me for a couple of
months and that I would come back and try some more.
Q Did you?
A Yes. I came back three months later, and
was still here ten years later.
Q What's your best estimate of the expense
that's been incurred by JFC in training?
A As far as methods of the company? I've
received no training as far as the methods of this company.
There is no definition to their methods. I received some
general sales training in terms of a general manager once
gave a seminar about how to be nice to customers. But that
did nothing for me as far as how to be an IT technical
search consultant. It was just general sales 101, but it
did not help me as a senior search consultant how to do
business with customers. And that was one day that I
remember in ten years.
Q One day in general sales training
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techniques?
A
Q
Right, one day in sales 101.
What training have you received in
information technology from JFC?
A I've never received any training information
technology.
Q Explain to the Court what you did to JFC to
generate business?
A Through my own ability to call and market
companies to find out what kind of hiring needs they may
have, get acquainted with those hiring managers to let them
know that I have the ability to help be a recruiter that
can help them fill their positions. And if I would get a
position to fill, then I would go out and search for the
candidate to fill that job.
What's the basis for the fee that's paid in
The fee that goes from the customer to your
Q
your position?
company?
A
The customers will pay generally in this
industry 20 to 25 percent of the starting salary of the
employee that is placed.
Q
A
will negotiate a flat fee,
reluctant to pay the fee.
Who sets the fee?
I do. I negotiate the fee.
depending on if
Sometimes I
the customer was
Sometimes we would strike a
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deal.
Q
Who finds the leads?
I do.
Did the company provide you as
a senior
search consultant with any leads?
A Very, very rarely. They had a temporary
marketing rep who's out looking for temporary business.
Once in a while, they would stumble on a direct hire lead
that-- very rarely would I get any kind of lead. In fact,
the joke around the company was, Carchidi would throw you
the phone book when you started and say,
Q Have you also generated a
candidates to fill openings that may be occurring or will
occur in the near future?
A Yes, every day I'm out soliciting new
candidates by word of mouth referral, and I enter names
into the Caldwell data base owned by JFC. Every candidate
that is a good candidate that I think is worth pursuing
goes into that proprietary data base owned by JFC. And
there is probably over a thousand candidates, maybe 2000
that I put in there that JFC owns. I have no access to
that data base from my house,
candidates in that data base,
will come
here's your leads.
list of potential
and if I'm not putting
I know the general manager
say, what's going on.
Q You've been with the company for 11 years?
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been.
A
I've been there 10
Q Of those--
completed,
one.
It will be 11 years this year-- would have
years.
of the 10 years that you've
how many were you the company's best producer?
A Seven-- at least seven. I think I tied on
Last year, I missed number one by $4000.00.
Q
A
last year.
number one.
Q
I'm sorry?
I missed number one by $4000.00 in cash in
I had a sequence of six years in a row of being
sales for the company, you would have been number one,
that what you're saying?
If you had generated another $4000.00 in
is
A
last year, yes.
Q
A
Five thousand. I would have been number one
How do you rank this year?
I'm right up there at number one. As of our
August meeting-- we have a division meeting every month.
As of August, I was ahead by $10,000.00, our last division
meeting in August.
Q Have you become dissatisfied with your
employment at JFC?
A Over the years in a sales business, I mean,
sales go up and down. Most frustration is lack of
training. There was no training. Motivation was always up
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to me to self motivate myself. Could you rephrase the
question again?
Q Yeah, the question was, were you
dissatisfied with your position?
A I was dissatisfied with management in
general, general management, the middle management that Jim
hired sometime around the mid '90's. They always expected
me to spend all of my time training new employees, and I'm
on straight commission. I changed to straight commission
which I never corrected before. In 1993, I asked Jim to
put me on straight commission. I had potential to make
more money on straight
got a general manager saying,
But what would it do for me?
of heat about not helping to
commission. So in '95, '96, he's
hey, train these new people.
And they would give me a lot
train the new people.
Q How frequently has the general manager
position of your office changed hands?
This year, there's been three general
A
managers.
Q
Now Mr. Martin testified today. Is he the
second or the third?
A
Q
complained about
you?
He's the third general manager this year.
Have you gone to anybody at JFC and
the management issue that was affecting
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A No, no. It's totally accepted that if
you're in sales, you can have certain types of pressures,
and I accepted that went with the territory of being a
salesman, that you're going to have management on you to do
better, push more, bill more. They would set goals every
December. What are your goals for next year? In general
sales, you're going to have pressure.
And in 10 years, I worked with 10 different
IT recruiters-- actually probably 12 different IT
recruiters, and 10 IT recruiters have left the company in
the last 10 years. And the longest IT recruit other than
myself, I don't even think lasted two years. So it's a
very tough business to survive in even on salary. And I've
been on straight commissions since 1993.
Q Now are you familiar with other employees
who have left the employment of Mr. Carchidi?
A
left the
I'm sorry? Could you say that again?
Are you familiar with other people who have
employment of Mr. Carchidi?
A
Definitely, yes.
I 'm going to give you a name.
Yes.
L-y-n-a-m?
Yes.
Mark Lynam?
Are you familiar with his departure?
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A Yes, I am.
Q What occurred when he left the company?
MS. GOLDSTEIN: Objection. What is the
relevance of this?
of proof.
company.
THE COURT: Mr. Clark.
MR. CLARK: I'll be happy to make an offer
Mr. Leach will testify that Mr. Lynam left the
He was sued by Mr. Carchidi. Litigation was very
contentious. Mr. Carchidi made Mr. Leach be a witness to
the proceeding, and then Mr. Carchidi used Mr. Lynam's name
as an example of what could happen to Mr. Leach down the
road.
MS. GOLDSTEIN: That's still not relevant,
Your Honor. We are here at a preliminary injunction about
restrictive covenant that governs Mr. Leach. Whether we've
litigated other restrictive covenants and how that
litigation went is totally irrelevant to this proceeding.
THE COURT: Mr. Clark.
MR. CLARK: I think we have to take into
account the relative clean hands of the parties and when
one party is assenting to use these proceedings as a sword
not a shield. I think the Court can take that into account
in determining whether or not the parties seeking the
injunction has the clean hands.
THE COURT: I wouldn't think a party would
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not have clean hands simply because they enforced a
covenant not to compete.
MR. CLARK: I'm not suggesting that, Your
Honor. But I think the circumstances and the threats that
were made following that, I think, can be taken into
account.
THE COURT: The objection is sustained.
BY MR. CLARK:
Q In the beginning part of 2001, this calendar
year, did you begin to consider other employment options?
A No more really than any other year. I've
thought about it, my wife would confirm, six, seven years
consistent, you know. This might be my last year. This is
a tough business. But no more than any other year.
A
Q
company without competing with the
This year?
Yes.
Did you consider how you could leave the
company?
It crossed my mind in the past that if I
left, I would not compete with this company, that I would
not compete. I would go to another territory and do
business to not violate the non-compete.
Q And at some point in time, did you begin to
develop a plan by which you could do that?
A Steve St. John came down to my house on
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March 31st to watch a basketball game.
develop a plan. But it just came out
ball game. I asked Steve if he was happy. He had been
there a year-- I'm sorry, he had been there one month.
And we didn't
through watching the
He
started in February. And the ball game was March 31st.
said, are you happy? He said, not really. I'm not making
enough money. He said, I'm still looking for a job where
I'm going to hit Carchidi up for more money.
I said-- that surprised me, because he was
doing good for me. He was helping me. But I said to him,
at that point, I said, well, before you came to JFC, did
you ever think about doing anything on your own, because
you were unemployed for two months? He like got excited.
Yeah, I really wanted to go on my own. I should have done
it before I came here. I don't like working here. I'm not
making enough. There's no one working with me but you,
Brian.
And from there, we started talking about,
well, hey-- he asked me actually. He said, you know, maybe
we ought to go in together. Then we were watching the ball
game and just, you know, snowballed from there. Maybe we
could do it. Where would we go? Let's go to Maryland and
not compete was my idea. Other than Gettysburg, five miles
from Maryland, and I said, we could work down there in the
beltway hopefully, you know, out of the range. We would
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focus on companies out of 75 miles.
Q Out of 75 miles?
A
Q
Seventy-five miles from the JFC offices.
What happened after the two of you had the
discussion in the basketball game?
A We decided that we needed more information.
I needed to contact an accountant, find out what kind of
companies would make sense in Maryland, and also an
attorney, that if we were going to go forward, how to
legally set up a business. And so I called a couple--
basically, I set up an appointment the following week to
see an accountant and an attorney just to find out,
research, find out what's available in Maryland and what
maybe we should consider starting up. But all of the
intention was that we would resign first and then start the
company. We were just trying to get things started.
Q Do you know the date that you met with
anyone, any professionals?
A It was the following week after the ball
game. I think it was a Friday. We met with an accountant
and his attorney to discuss our options. The accountant
agreed that LLC, Limited Liability Company made sense in
Maryland for a two-person company, and we went to the
attorney and asked her about, could she do it for us. And
she was willing to do it on that day.
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Q
What's the name of that attorney?
Rosemary McDermott.
What documents was Ms. McDermott going to
draw up for you?
A She was going to draw up articles of
organization, bylaws. There was several things involved
with getting the company started. But I remember those
two.
Q Was she going to-- what state was she going
to incorporate you in?
A Maryland.
Q Did you discuss with her the prospects of
transferring that business to Pennsylvania or any other
state?
A Can you say that again, please?
Q Did you discuss with her the possibility of
transferring that business to Pennsylvania or any other
state?
A
Right. We decided that we might, a year
later, when our non-competes had expired, want to do some
business in Pennsylvania, yes. So we discussed the
possibility that once we were in business a year, that we
would possibly work back into Pennsylvania. Is that the
question?
Q Yes.
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A Okay.
THE COURT: Could I interrupt for just a
second? Just from what Mr. Leach is saying, it doesn't
sound as if he had any intention of, at least according to
him, any intention of starting a business within 75 miles
of any of these locations in Pennsylvania. If that's the
case, is there any objection to simply entering an order by
agreement that he would not do so? I mean, he's really not
saying that he was going to start a business within 75
miles of any of the offices in Pennsylvania, and he's not
saying he was going to use any of the materials.
MR. CLARK: We have two problems with that
right now, Your Honor. I mean, one is the fact that Mr.
Leach has been terminated and he no longer has employment.
The second is, he's going to testify that while the-- he
started that plan, he's stopped that plan almost
immediately after the plan was even contemplated. So he's
no closer to moving this plan forward today than he was six
months ago.
THE COURT: But you're not maintaining he
has a right to continue to be employed, it was just--
MR. CLARK: I agree, he can be terminated.
But if you look at the Bronstein case, and I cited that in
the memorandum of law that I brought to you in chambers
earlier this afternoon, the Bronstein case says that when
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the employer terminates
has to be taken into account when the
enforce a non-compete.
In other words, it's
an employee, that's a factor that
employer attempts to
inequitable for the
employer to terminate the employee and say, you're no
longer good enough for us, but at the same time, we want to
keep you on the shelf and enforce this restrictive covenant
that takes away your earning capacity. I think that's
where the employer has-- one of the many places where the
employer has muddied the waters at this stage in the
process.
THE COURT: All right. Well, I just thought
there might be a settlement, but obviously, there cannot
Clark.
be. Go ahead, Mr.
BY MR. CLARK:
Q
As a result of the meeting with Ms.
McDermott or at this time of meeting with Ms. McDermott,
was an employer identification number established?
A She said that would be the very first thing
to do, was to go ahead and get the identification number
for Maryland.
Q
A
numbe r,
Get what?
They call it EIN,
what you said, yes.
Q Was that done?
employer identification
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A
Q
organization
A
Q
A
Q
Yes.
To your knowledge, was-- were articles of
filed?
Yes.
Do you know what state they were filed in?
Maryland.
Was there any effort taken to transfer that
corporation in any fashion to any state outside the State
of Maryland?
A
Q
by Ms. McDermott beyond the articles of organization?
A No, she did not have time under what we
wanted to get it done by, the end of April, because I was
going on vacation the beginning of May. And we wanted to
have it done, but she didn't have time. She was too busy.
Q We, meaning whom?
A I'm sorry?
Q You said, we wanted it done?
A Steve St. John signed on with Rosemary
McDermott. His signature is on her letter to agree to do
the service for us. And I signed it as well. But she
No.
Were there any documents that were prepared
get back.
She was too busy.
figure this out
And I just wanted time to think about
didn't have time to complete our bylaws.
So I said, I'm going on vacation. We'll
when I
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everything.
Q Was Ms. McDermott able to complete that
before you went on vacation?
A No. We decided when we left that she
wouldn't do it. She was just hard to deal with. knd I
just figured, let's just figure out-- we might get another
attorney. Let me go on a two-week vacation and figure out
what we're going to do.
Q So you went on vacation
A Yes.
Q
A
Q
for two weeks?
A_nd you returned when?
May 18th.
Now after May 18th, did you take any steps
to engage in other--
A I was just curious if another attorney would
be able to do this for us. I contacted a Leslie Powell.
And I saw her on May 25th in Frederick to find out from
her, how would she go about it, did I do something wrong
with the first lawyer.
same offer letter, but
actually, she took all
And she pretty much gave me the
Steve St. John wasn't there--
the information down, and then the
next week I received her offer letter in the mail.
Steve St. John received her offer letter in
the mail from her. If we wanted to go forward with her
service to set up this company, we had to sign it and send
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it back.
Steve St. John. That is the letter that
dropped on Jim Carchidi when he resigned,
So she mailed a copy to me and mailed a copy to
Steve St. John
that neither one
of us signed, to say that we were planning to start the
company. But I decided not to go through with it.
letter?
Q
You're getting ahead--
I'm sorry. Go ahead.
Okay. You said, neither of you signed that
A No, I never contacted Ms. Powell again after
that day. I just thought-- well, there was some things
going on, and you're probably going to ask me.
Q You didn't sign the letter. Steve didn't
sign the letter?
A No, no. By the way, I want to emphasize,
the letter was mailed by Mrs. Powell from Mrs. Powell to
Leslie Powell mailed the letter to him
Steve St. John.
because--
Q
A
Did she mail the letter to you?
And to me, yes. But I saw that Steve St.
John said that I mailed the letter to him in his whatever,
interview.
Powell to
Q Did you or anybody else pay money to Ms.
take the next step?
a No, never, no.
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Q
taken any steps to creating this company, RCI,
filing of articles of incorporation or the--
A We did that.
THE COURT: You need to
What was the question?
his sentence.
BY MR. CLARK:
Q
~as anybody, Ms. Powell or any other person,
beyond the
let Mr. Clark finish
Did any attorney take any steps to form the
corporation other than filing the articles of organization
or getting an EIN?
No.
Has there ever been an issue of stock on
No.
Now you decided, you didn't want to
in this matter any further?
Yes.
When did you reach that decision?
Probably about a week to two weeks after
Some things were happening.
And you met Powell in the week that you
A
behalf of RCI?
A
I'm pretty sure that's
It was a week to two weeks after you met
Q
participate
A
Q
A
met Powell.
Q
returned from vacation?
A Yes, on May 25th.
the right day.
Q
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with Powell
with this?
A
Q
A
Q
A
that you decided you didn't want to go through
Yes.
Did you talk to Steve St. John about that?
Yes.
And what did you tell Steve St. John?
I just said, I'm not ready to do it anymore.
You do what you want to do. But I'm staying at JFC.
Q What were the considerations that went
through your mind in deciding you didn't want to go through
with it anymore?
A I just had a huge month in May. I was
feeling pretty good about my cash in. Business was going
good. I had $60,000.00, which is huge in this business.
Early in June, my wife, who works part-time, who has
benefits-- I've never had medical benefits with JFC.
They've always been through my wife.
Early in June, she started hearing that she
was probably going to be laid off. And I thought, well, I
can't start anything if we're not going to have benefits.
I'd have to get involved with all of that. And thoroughly,
and probably most importantly, I started to mistrust St.
John. He exaggerated.
Just about everything he would say to me was
an exaggeration. I just-- that was the biggest factor.
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The other two were
his personality,
JFC. And I said,
staying.
Q
actually minor, but I just decided, with
it would never work, and I'm staying at
Steve, do what you want to do, I'm
Did Steve St. John talk to you about
attempting to place clients on behalf of RCI while he was
employed at JFC?
MS. GOLDSTEIN:
THE COURT:
MR. CLARK:
Objection, hearsay.
Mr. Clark.
Well, this man's sworn statement
has already come in. I think that it has to be taken in
the context of things that he said. I'd love to ask the
man myself. I'd love to have him here to ask that
question. But since he's not, I think they have to take
the good that comes in with this person along with the bad.
MS. GOLDSTEIN: But those statements are
sworn, Your Honor. This is just purely hearsay.
THE COURT: I'll overrule the objection.
THE WITNESS: Would you rephrase the
question again, please?
MR. CLARK: Sure.
BY MR. CLARK:
Q The question was, did Mr. St. John make any
statements to you about efforts that he had made to place
business on behalf of some entity other than JFC?
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A He told me that he was thinking about
calling a company in Boston after I said I wasn't going to
do it anymore. I said, you do what you want to do. He
said, I might pursue something in Boston. I said-- that's
about all I remember hearing, that he might do that. I
said, fine.
Q In the month of May, describe your
production for the company?
A As I said, I had billed $60,000.00 in May.
I was on vacation for two weeks, so the work was done a
month ahead of time before the cash comes in, sometimes two
months ahead of time. Part of my production down turn in
the summer was a couple reasons. I was on vacation two
weeks in May. So that's going to hurt my June, which was
probably the lowest month I've had in a long time.
I had only 5000 in June. But when you're on
vacation, that hurts your following month. Also, if you
have a big month, sometimes that's just because cash came
in early. Some companies pay sooner than they were
supposed to. But if you take 60 for May, and 5 for June,
that's 65 in two months. That's a $13,000.00 a month
average. How is that poor production?
the company up until the last meeting.
cash in.
Q Throughout the months of
I was number one in
I was number one in
2001, is there any
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time when you failed to use your best efforts on behalf of
your employer?
A
Q
in revenues,
No.
Now when Mr. Carchidi mentions your drop off
are they for any other reasons besides the
ones that you explained here?
A No.
Q Have you taken any steps to participate in
business of RCI since you made your statement to Steve St.
John that you didn't want to go forward with him?
A No, I have not.
Q Do you have any computers at your house?
A I have several computers. My kids have a
couple computers. I have a lap top that I've taken on
vacation, which I took in May and did some work on the lap
top. It is my own personal computer.
Q You bought it with your funds?
A Yes.
Q Do you have a computer that JFC bought?
A No.
Q Do you use the computer that you bought for
your business on behalf of JFC?
A Only for e-mail. I will exchange the
e-mails, which is a very heavy part of this business. If
you don't have e-mail at night, you're going to lose a lot
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of business. So I know Mike Matola has e-mail at home
also. He has an AOL account at home that he used for
and I have a prolog account that I use for
business,
business,
business
which is the internet provider that I've used for
for six years from home just for e-mail, and
that's all I have at home.
Q Do you store your work-related e-mails in an
account other than the prolog.net account?
A No. And actually, a lot of those, every six
months, I'll just go through and delete all the six months
just to kind of keep my data base free. I'll delete a lot
of old e-mails because they're really not relevant after
three to six months, we'll say. So I'm often deleting
things that aren't relevant because they're just e-mails.
It's nothing other than conversations between me and a
candidate or between me and an employer. They're not
really important two years from now, so I do delete all of
those.
Q Last Thursday, September 6th, did you learn
about a lawsuit that had been initiated against you by your
employer?
A Yeah.
me at home and said,
Thursday morning, Steve Martin called
can you come in today at 2:00?
Actually he said, can you come? I said, well, I have a
lunch meeting with York International. I'm trying to close
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a very big placement I'm hoping is going to happen, that I
have already made an offer to the person. I'm going to go
meet a director and try to bring this offer together. That
was last Thursday.
He said, well, go ahead and go to that
meeting, and I want to see you at 2:00. I said, fine. I
came back in the office about 1:30, got some work done.
Five minutes of two, I called my wife. She said, Brian, we
have a lawsuit in the mail from JFC. I was like, what?
And she said, something about St. John. I thought, okay,
here we go. This guy is trying to drop the bomb on me.
So I went out to my car, and I thought,
what's going on here? He wanted to see me in two minutes.
I went out to my car, called Martin on my cell phone, and
said,
what is going on?
have a lawsuit at
just come on in.
minutes, and I
worry about it,
You guys want to see me in two
home. He said, don't
We want to talk to you.
So I said, I have nothing to hide. I know what happened.
I'll just tell them the truth. And that's what I did. I
went in to see them at 2:00.
Q
A
people right
Carchidi.
person.
And you went in to see Mr. Carchidi?
When I went in there, it was these three
here, Steve Martin, Saren Savage, and Jim
Karen was taking notes. She's the personnel
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Q What was it that Mr. Carchidi said to you?
A He said, what were you and Steve St. John up
to? I said, Jim, we were going to start a business. We
were planning to start a business. We were never going to
compete. We never intended to compete, and we never
started the business. I changed my mind in early June.
And then he said, who's Rosemary McDermott? I said, well,
that's the attorney we were going to use. Who's Leslie
Powell? Well, that was the second attorney we were going
to use.
And then he proceeds to say, hey, he's
holding the papers, other law papers, which I assume they
were, and he said, if you don't cooperate with me, you're
going to suffer huge consequences. I will use all of my
power to crush you under the law. And then he throws me
these documents in person and says, I want you to go home
with Steve Martin and give him all of your information that
you have on file from JFC.
said,
I'll
I said,
am I terminated? They said,
cooperate.
Q Did you invite Mr.
fine, let's go. I
just cooperate. I said,
Martin into your house?
A
systems manager that
e-mail.
Q Did you--
Yes, and along with Mr. Martin was the
looked at my computer to try to get my
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copy resumes are
old file cabinet
drawer with you.
A And I let him in with no problem, as Steve
Martin testified. I cooperated. They went in, and I
showed them where I store some resumes, that actually hard
almost irrelevant anymore, but I had an
of old resumes. I said, take the whole
I said, there's a company file drawer.
Take the whole thing with you.
I don't know.
I said, am I terminated? Steve Martin said,
I said, take it all with you. He said,
let's keep it organized because we don't know what's
happening here. Okay. And then John Featherlin got on the
computer and tried to send my e-mail back to JFC, but the
modem wasn't working or something,
we'll come back tomorrow. I said,
to do that.
so he said, well, maybe
fine. And I was willing
And then they left with three file drawer
cabinets and a box of just papers, you know.
all I have in my home. They took everything.
them saying, there's more stuff at my home, there isn't.
As far as physical-- there's e-mail there that they never
got, but there's no physical other material.
Q What was the reason why the e-mail couldn't
be delivered?
A The modem. He just was having trouble to
get the modem to cooperate. He was trying to do some kind
And that's
So as far as
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of special thing to send all of my e-mail to his e-mail,
and it wasn't working.
Q Now in the months of 2001, have you
attempted to place any candidates on behalf of entities
other than your last employer, JFC?
No, never have.
Q Have you attempted to recruit candidates on
behalf of other entities?
a No, never have.
Q Have you contacted employers for the purpose
of recruiting a prospect for other than JFC?
A I'm sorry. Could you say that again?
Q Have you contacted an employer for the
purpose of prospective recruiting other than for JFC?
A This is another item that St. John tried to
blow out of perspective when he talked to Carchidi. I told
St. John once, right when I got back from vacation, that I
wanted to just make a trial call to see if a company north
of Philadelphia, outside of territory, would do business
with a company in Maryland.
And I saw an ad for some kind of computer
position. I called them, and I just asked them, did they
have any openings, would they do business in Maryland. He
said, no. And that was the end of the call. Well, St.
John apparently has turned that into, that I was already
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doing sales for RCI.
It was just a trial balloon.
you know,
and we
the second attorney,
wasn't ruled out yet,
was it. Does that
Q Yes.
I was curious,
if I was going to start a business in Maryland,
still-- I still had not seen Leslie Powell yet for
so I was still' thinking about it. It
so I made one trial call, and that
answer your question?
Now if RCI had gone into business,
where would you have-- what employers would you have
What's the geographical location of the
contacted?
employers?
A
We were going to focus-- the reason I wanted
to be in Maryland, and the accountant we saw said, it makes
sense, because Maryland agencies don't have to charge a
sales tax to their customers, so it would make sense if I
wanted to do business in Maryland. I was going to focus,
to answer your question, on the beltway area, southern
Maryland, northern Virginia. But the reason I wanted to be
a Maryland agency also is, I didn't have to charge those
customers a sales tax. As in a Pennsylvania agency,
would have to charge them a sales tax.
Q
A
northern Virginia, and then I had that thought
Philadelphia, but I kind of dropped that idea.
we
So what geographic area were you targeting?
We were targeting southern Maryland,
of north of
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Q Do you have any basis to know where
placements are made by JFC? Do you have any basis to know
where JFC recruiters--
A I know I make my own placements.
THE COURT: Wait. I don't think the
question was finished.
THE WITNESS: I'm sorry.
THE COURT: What was the question?
BY MR. CLARK:
Q The question is, do you know the geographic
region where JFC makes its placements?
A Oh, absolutely, yes.
Q How do you know that?
A Prom being in the company 10 years, I know
where they make placements.
Q Do your peers, your fellow recruiters tell
you where they're making placements?
A Yes, that's why we have a personnel meeting
once a month to talk about how everyone is doing, and
company names will come up, and probably 90 percent of the
time in central Pennsylvania around these JFC offices.
Q Do you know of any permanent placements that
JFC has made in the State of Maryland?
a I'm not aware of any ever. I've never made
one. I'm not aware of anybody in the company making a
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placement with a Maryland agency or with a Maryland
company.
Q
miles of your office in Camp Hill?
A No.
Q Were you going to recruit candidates who
lived within 75 miles of your office in Camp Hill?
A No. It's typically, you have to find
candidates where the companies are.
Q Were you going to call on any IT client
you had serviced when you were with JFC?
A Definitely not, no. I'll just say, no.
sorry.
served?
whom
Were you going to call on clients within 75
Q were you going to call on clients whom JFC
A No.
Q Were you going to use any information from
JFC's proprietary data base?
A No, I wouldn't have access to it even if I
wanted to. If I'm not in the building of JFC. I've never
had access to it if I'm not in the building.
Q Did you at any time engage in the employment
agency business other than with JFC?
A No.
Q In the course of your employment with JFC,
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are you familiar with instances where you've made multiple
placements for single client and single unit?
A Several.
Q Do you know who those companies are?
A I've made multiple placements, between five
to six or seven placements in a calendar year with York
International, with Rite Aid, with Capital Blue Cross, with
Highmark, five or six different companies at least that
I've made multiple placements with of substantial numbers
of five, six, or seven in one year.
Q Did you mention Hanover Direct?
A No, Hanover Direct would be another one.
Q Did you mention Delfa Communications?
A Adelphia Communications is a very big client
right now where we get multiple job orders every month, and
I filled six positions with them last year with Adelphia.
Q When you fill multiple job positions for a
single employer in the span of a month, what does that
suggest to you as to the necessity of training a
replacement and having a replacement understand the
business?
A Well, if the job orders are coming in, all
they have to figure out-- the companies are already doing
business. Just because I left, they're going to keep
sending their job orders to JFC if I don't contact them.
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And that new person is going to get those job orders and
have the opportunity to fill them.
MR. CLARK:
THE COURT:
sorry. Ms. Goldstein.
CROSS EXAMINATION
BY MS. GOLDSTEIN:
I have no other questions.
Ail right. Mr. Grose. I'm
Q Good afternoon, Mr. Leach. Is your
residence within 75 miles of a JFC office?
A Yes.
Q And you signed the restrictive covenant on
or around the date you were hired by JFC Personnel?
A Yes.
Q I'm going to show you what has been
previously marked as Plaintiff's Exhibits 5 and 6.
MS. GOLDSTEIN: May I approach the witness?
THE COURT: Certainly.
BY MS. GOLDSTEIN:
Q
Take your time to
look at them.
Go ahead. I'm ready.
Are those accurate?
They look very close,
if not.
Is there anything that you would disagree
A It looks very close.
with?
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Q
for the last--
about 24.8 percent
A Yes.
Q Okay.
So you would be in general agreement that
or for 1998, 1999, and 2000, your average
of JFC Personnel's sales?
When you came to JFC in 1990, did you
bring Rite Aid with you as a client?
A No.
Q And you didn't bring York International
either, did you?
A I didn't start dealing with York
International myself until about three years ago. Whether
they dealt with JFC before 1990, I don't even know.
Q But you personally did not deal with them
prior to 1990, is that correct? You're saying--
A I wasn't employed there before 1990.
Q Right, so you had only been dealing with
York International--
A Right.
Q --while you were an employee with JFC?
A Right.
Q Highmark, is that the same, that you were
not-- that was not a client you brought with you in 19907
A Well, at the time in 1990, they were called
Blue Shield, Pennsylvania Blue Shield, and that's the
company that I went to work for for three months when Jim
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decided business was too slow.
three months.
with them.
Q
He had no work for them
In 1991, I worked for them, so I'm familiar
What I'm asking you, sir, is, you did not
bring Pennsylvania Blue Cross, Blue Shield as a client--
A No.
Q --in 19907
A No, I did not.
THE COURT: You have to let Ms. Goldstein
finish her question.
THE WITNESS: I'm sorry.
THE COURT: That's all right.
BY MS. GOLDSTEIN:
Q You did not bring?
A No, I know what you're saying.
Q And did you pay Rosemary McDermott a
$5000.00 retainer?
A I paid her $400.00, because she agreed to
pay our filing costs in Baltimore of $100.00.
Q And was it your understanding that Leslie
Powell, the other attorney, was going to-- was meeting with
you for free the first time?
A Yes, that visit, when we went over our idea
that the first attorney really didn't want to complete it,
I said, would you be able to do this? Did I do something
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wrong the first time? She laid out, I
I'm going to mail to you and Steve St.
that says,
price was.
Q
I can do it for you. And I
For the first meeting,
could do it for you.
John this letter
forget what her
your understanding,
that was free or are you expecting a bill?
A I wasn't expecting a bill, no. No, I
wasn't. And I haven't received one yet.
MS. GOLDSTEIN: Can I approach the witness
again, Your Honor?
THE COURT: All right.
BY MS. GOLDSTEIN:
Q I'd like to hand you Plaintiff's Exhibit 4.
Is this the letter that you received from Ms. Powell?
A The following week, I received this, and
Steve also called me and said he got a copy, and he knew it
was coming. We had talked about it ahead of time. It was
no surprise. He knew I went to see Ms. Powell, and he knew
this was coming. And it was mailed from Mrs. Powell to
Steve.
Q Is it your intent now to compete against JFC
within the 75 mile radius of any JFC office?
A
Q
you resigned,
No.
And your plan was to start RCI business when
is that right? At one point, that was your
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plan?
start it.
A Yes, after I resigned, we were going to
Q So your position is that, JFC should keep
you employed until
that correct?
A
Q
employed until
question.
conclusion,
before us right now.
you decide to start another business, is
Could you say that again?
Is it your position that JFC should keep you
you decide to start another business?
MR. CLARK: I think that's an argumentative
I think it calls for a little bit of a legal
and it gets into an issue that's really not
Mr. Leach isn't asking for permanent
employment. If the employer wants to terminate him, the
employer is free to terminate him. I think the question
is, is Mr. Leach in violation of a valid document? Is the
document valid? Was Mr. Leach in violation of it? They're
the issues before the Court. I don't think this question
has any relevance to the issues before the Court. So I
would object.
THE COURT: Ms. Goldstein.
his direct
somehow that this is
can get to the heart
MS. GOLDSTEIN: He spent a lot of time on
saying that he intended to work for JFC and
relevant to the case, so I think we
of the matter of, you know, what was
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he intending on doing. Basically, he was planning on being
duplicatus until he could start his other company, and what
he was going to say on direct was, oh, I just intended to
do this,
intent.
please?
and I dropped it.
THE COURT:
THE WINTESS:
MS.
So I'm trying to get to that
You may ask the question.
What was the question?
GOLDSTEIN: Can you read it back,
THE COURT: The question was, is it your
position that you're entitled to work for JFC basically as
long as you want? I think that's what you're asking.
THE WITNESS:
will as far as I understand.
will.
BY MS.
No, they can terminate me at
They can terminate me at
JFC can terminate me at will.
GOLDSTEIN:
Q And is it correct that this June of 2001 was
the lowest month that you had in the last five years?
A I don't know if it was the lowest. It was
the lowest this year.
I had 60,000 in May.
no control of my own.
Five thousand dollars cash in, yes.
A lot of that cash came in early by
When an accounting department
decides to cut a check is up to them.
Q And the 60,000 you got for May was not for
all-- was not for actual-- it wasn't all for work you did
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in May, is that right?
that's cash in?
A
Q
So when you talk about 60,000,
Yes.
And is it correct that you received only
$9800.00 cash in in July?
A That's how much I had in July, yes. Part of
that would be the fact that I was on two weeks vacation in
May, again not doing any business other than trying to
maintain a few things in Florida. But I wasn't being pro
active, so I'm going to have low sales after being out of
the office.
Q And when did you find out that your wife
would be laid off?
A Early June. She started hearing around the
office that they were closing down a couple of places and
that she might be getting laid off.
And what's your wife's training?
What's her training?
Q
Yes.
She's an M.D.
been working two days a week.
She's a physician, and she's
We have three children. And
she stays home to watch a two-year-old and a five-year-old
who's now in kindergarten. And she spends time with them.
And she had been working two days a week with benefits, but
she was going to lose those benefits if she got laid off.
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And it was
about it, she got a letter that she is laid off,
still-- her last day is going to be this month.
her like three months' notice. And so she knows
month, she doesn't have a job.
Q
announced officially a few weeks after she heard
and she
They gave
after this
And you testified that you keep about six
months' work of e-mail on your JFC e-mail in the prolog
account, is that correct?
A It depends on the company. Some companies,
if I know I'm not going to do any business with them,
there's no point in keeping. It's my personal computer. I
have no rule from JFC to say what I can and can't leave on
there. It's my personal decision on e-mail.
Q I think you testified that approximately?
A I said, approximately. Some of them could
be a week. I might delete one company the first day I talk
to them, all of it.
Q And have you deleted that e-mail as of
today? Do you have any JFC e-mail on your computer?
A There's a few on there that Steve or John
Featherlick couldn't get off there. There's some on there.
Q Could they get any off the day-- Steve
Martin or the day they came to your house?
A He was trying to send it, as I said before,
through the internet or something.
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Q It wasn't successful?
A No.
Q So all the ones that were
there the day that
Steve Martin were there are still there today,
correct?
A I
terminated yet.
is that
made some calls that night. I was not
I don't know. There could be one or two
that's not there. One or two e-mails. I made some calls
that night. And I didn't know I was terminated as of
They came down Thursday and got all the
Thursday night.
information.
Q
there e-mails?
A
still working,
I'm asking you about today. Today, are
There possibly could be a few because I was
and I won't do anything, and I may have
deleted a couple.
Q Okay. But there may be e-mails at your
house that are JFC e-mails, is that correct?
A I answered that already, yes.
Q And have you taken any steps to terminate
the RCI corporate entity?
A That's probably something I should have
done. It's on file.
from the accountant,
expire, the EIN number.
I thought maybe-- I thought I heard
if you don't do anything, it will
I have not done anything, but if
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receive notification, hey, you should do something, I
probably would have shut it down. But no one has sent me
anything from Maryland about this EIN number. I just
figured, whatever, it will just expire.
Q The trial call that you testified that you
made to a company in north Philadelphia--
Uh-huh.
--you made that from your home, is that
A
correct?
A
I made it from my home on lunch with a
prepaid phone call card, because I knew it was not JFC
business, and I had already decided that, hey, if I am
going to make this kind of call just to see if a company
north of Philadelphia will do business with a company in
Maryland, I'm not going to do this on JFC's dime. I have a
prepaid phone card. I made that call. I got it resolved,
and that was that.
Q You never told anybody from JFC about that
trial
hour,
anybody.
call, is that correct?
A That was on my personal time on my lunch
so there would be no reason to share that with
Q So is that a no, that you never told anybody
from JFC other than that call?
A Other than Steve
St. John who was still with
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the company at the time.
it.
Q The first
Steve St. John would know about
two years you were with JFC, did
to York International?
you make any multiple placements
A No.
Q And the first
two years when you were at
JFC, did you make any multiple placements to Rite Aid?
A I don't know.
Q The first two years you were at JFC, did you
make any multiple placements to Adelphia Communications?
I don't think so. We weren't doing business
A
with them.
Q
And are you willing to agree not to contact
any JFC clients?
A I'm sorry. I missed the beginning.
Q You are willing at this point not to contact
any JFC clients, is that correct?
At this point, now that I'm terminated?
Yes.
Yes.
MS. GOLDSTEIN: That's it, Your Honor.
THE COURT: Mr. Clark.
REDIRECT EXAMINATION
Mr. Leach, after last Thursday, was there
A
BY MR. CLARK:
Q
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him, you know,
that.
Q
A
year. But it
still a placement pending with York International for a
fella named Dale Whitmer?
A Yes, that was the lunch meeting I had that
same day. And then they came down to my house and-- Jim
didn't tell me I was terminated. In fact, I asked Steve
Martin, should I continue to try to make this placement?
He said, oh, definitely, I don't know what's going to
happen yet. I called Dale Whitmer that night. That was
the night I was still playing with e-mail after I had come
down. I'm still working. I don't know if I'm fired.
In fact, all day Friday, I was asking for my
job back in the two meetings that I requested with Jim
Carchidi. And these three people were present. I told
I made a mistake, and that I was sorry for
Is Mr. Whitmer's placement a valuable one?
It would have been my biggest placement this
did not happen. We were waiting for a second
offer letter, and I found out Monday that they decided not
to go with the offer. The candidate called me at home at
night. I don't know if he knew I had a job or not. But he
had my home number anyway. I give that out a lot. And he
called me at night and said, they called me and said
they're not going to up the offer, so I'm not taking it.
So that was the end of that. I said, well, good luck.
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Q The they, you were talking about?
A York International called him direct because
I wasn't in the loop. Maybe they tried to reach me Monday.
I don't know. I wasn't in. I was terminated. So they
called Dale direct and told him they weren't going to go
with the higher offer, and he said, okay, I won't take the
job.
Q Was the downfall of that deal anything that
had to do with you?
A Absolutely not. I spent two months working
to get him four interviews there, and he would have taken
the job if they would have upped the offer a little bit.
Q And this was all being done with the express
your efforts in attempting to
direction of Mr. Carchidi,
close the deal?
A Yes, absolutely.
keep working, you know.
you.
He and Steve Martin said,
So I did.
MR. CLARK: I have no other questions.
THE COURT: Ms. Goldstein.
MS. GOLDSTEIN: No other questions.
THE COURT: Okay. You may step down.
Thank
(Whereupon, the testimony of Brian Leach
concluded.)
49
I~l ~o ~:=s A~encies Be~inn~n~
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thinking Trouble Was
Time Unemployed Week
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
~-~e~dy C//Yi~ger f\ ~
Offici~t Re~tter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
2ool
Date
50
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, 1NC.,
d/b/a JFC PERSONNEL AGENCY
Plaintiff,
V.
BRIAN A. LEACH
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
To~
NOTICE TO PLEAD
JFC Personnel, Inc.
c/o Stephen L. Grose
KEEFER, WOOD, ALLEN & RAHAL
210 Walnut Street
Harrisburg, PA 17101
YOU ARE HEREBY NOTIFIED to file a written response to the enclosed New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted:
Dated: December 27, 2001
CLARK LAW OFFICE
Frank P. Clark
Attorney I.D. #35443
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.,
d/b/a JFC PERSONNEL AGENCY
Plaintiff
V.
BRIAN A. LEACH
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
JURY TRIAL DEMANDED
AMENDED ANSWER TO COMPLAINT WITH NEW MATTER,
COUNTERCLAIM, AND ACTION FOR DECLARATORY JUDGMENT
Defendant Brian A. Leach, by and through his attorneys, Clark Law Office, amends and
files the following Answer to the Complaint in the above captioned matter together with New
Matter, Counterclaim, and Action for Declaratory Judgment. In support thereof, Mr. Leach
avers as follows:
ANSWER TO COMPLAINT
1. Admitted on information and belief
2. Admitted.
Denied as stated. To the contrary, Mr. Leach was formerly an employee of JFC, but
was terminated on or about September 7, 2001.
After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, after reasonable investigation, Mr. Leach is
without sufficient knowledge or information to admit or deny and the averment is
therefore denied.
6. Admitted.
10.
11.
12.
13.
14.
15.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach admits that on or about October
22, 1990, he signed the document attached as Exhibit"A" 'out' 'taemes' the remainder of
the averment.
The averment is a legal conclusion to which no response is required and is therefore
denied.
Denied as stated. Although Mr. Leach denies that a document constitutes a "contract,"
Mr. Leach was employed by JFC as a Technical Recruiter in Camp Hill and served in
that capacity or as a Seamh Consultant, until September 7, 2001, when JFC terminated
his employment.
Denied as stated. To the contrary, Mr. Leach worked full time for JFC in the Camp Hill
Office; beginning in or about 1994, he reported to the Camp Hill Office Mondays
through Thursdays; beginning in or about 1997, he reported to the Camp Hill Office on
Mondays, Tuesdays and Thursdays; beginning in June 2001, he reported to the Camp
Hill Office on Mondays and Thursdays.
Denied as stated. To the contrary, Mr. Leach worked full time for JFC, and worked in
the field or out of his residence in Gettysburg on those days when he did not report to
the Camp Hill Office.
Denied as stated. To the contrary, Mr. Leach's job duties included recruiting full- and
part-time computer and technical personnel at the manager level and below to fill
vacancies at JFC or client employers.
Denied that JFC earns a placement fee when placement is made at JFC; otherwise
admitted.
Admitted as to all except "medical benefits;" to the contrary, Mr. Leach received dental
benefits from JFC but never received medical benefits from JFC.
Denied. To the contrary, in or about 1990 JFC provided Mr. Leach with minimal
employer contacts and employment candidates; thereafter Mr. Leach on his own and
with no substantial assistance from JFC established a wide network of employers and
candidates for positions.
2
16. While Mr. Leach is without sufficient knowledge or information to comprehend what
constitutes "many of Mr. Leach's current employer clients," the averment is
nonetheless denied. To the contrary, Mr. Leach essentially built a computer and
technical placement group at JFC and the clients he serviced were predominantly either
technical placements not previously provided by JFC or new businesses not in
existence prior to Mr. Leach's employment with JFC.
17. After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
18. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that JFC expended,
shared or provided the enumerated items or matters and the averment is therefore
denied.
19.
20.
21.
22.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that JFC expended,
shared or provided the enumerated items or matters and the averment is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied, as to the contrary,
in March 2001, Mr. Leach began to investigate the formation of a noncompeting entity
in the State of Maryland. By way of further answer, in June 2001, Mr. Leach terminated
the investigation without completing the formation of said noncompeting entity. By
way of further answer, at all relevant times, Mr. Leach exercised his best efforts on
behalf of JFC.
Denied as stated. To the contrary, Mr. Leach was employed by JFC up until September
7, 2001 and used his best efforts on behalf of JFC through and even beyond that date.
Denied. To the contrary, Mr. Leach investigated the formation of a noncompeting entity
in the State of Maryland to be named "Recruiting Consultants International, LLC." By
way of fimher answer, in June 2001, Mr. Leach terminated the investigation without
completing the formation of said noncompeting entity. By way of further answer, at all
3
relevant times, Mr. Leach exemised his best efforts on behalf of JFC.
23. Denied as stated. To the contrary, the IRS issued an employer identification number for
"Recruiting Consultants International, LLC."
24. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and did not use or anticipate using JFC
employees.
25. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC resoumes to the course of his employment with JFC.
26. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and did not "recruit current JFC
employees."
27. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and, to the extent he possessed "trade
secrets" of JFC, Mr. Leach reasonably restricted his use of the same to the course of his
employment with JFC.
28. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
resumes directed to JFC to the course of his employment with JFC.
29. Admitted. By way of further answer, said web sites are in the public domain, accessible
to any person having internet access.
30. After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny and the averment is therefore denied.
31. The averment is a legal conclusion to which no response is required and is therefore
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
"posting privileges" to the course of his employment with JFC.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
COUNT I
Paragraphs 1 through 34 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that he has a "competing
business." After reasonable investigation, Mr. Leach is without sufficient knowledge or
information to admit or deny the remainder of the averment and the same is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, after reasonable investigation, Mr. Leach is
without sufficient knowledge or information to admit or deny the remainder of the
averment and the same is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
42.
The averment is a legal conclusion to which no response is required and is therefore
denied.
43.
The averment is a legal conclusion to which no response is required and is therefore
denied.
44.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that he is "poised to
operate" a entity that never existed and that even if its formation had been completed
would nonetheless have done business in a noncompeting manner in a state where JFC
does no business.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNTII
45.
46.
Paragraphs 1 through 44 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied.
47.
The averment is a legal conclusion to which no response is required and is therefore
denied.
48.
The averment is a legal conclusion to which no response is required and is therefore
denied.
49.
The averment is a legal conclusion to which no response is required and is therefore
denied.
50.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, Mr. Leach denies that there were any
"violations" to disclose.
51.
The averment is a legal conclusion to which no response is required and is therefore
denied.
6
52.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
53.
54.
55.
COUNT III
Paragraphs 1 through 52 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied, as to the contrary,
Mr. Leach was a Search Consultant not an Executive Recruiter. After reasonable
investigation, Mr. Leach is without sufficient knowledge or information to admit or
deny the remainder of the averment and the same is therefore denied.
The averment is a legal conclusion to which no response is required and is therefore
denied.
56.
57.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and did not "recruit JFC employees."
The averment is a legal conclusion to which no response is required and is therefore
denied.
58.
The averment is a legal conclusion to which no response is required and is therefore
denied.
59.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
7
60.
61.
COUNT IV
Paragraphs 1 through 59 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied.
62.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
63.
64.
65.
COUNT V
Paragraphs 1 through 62 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC resources to the course of his employment with JFC.
The averment is a legal conclusion to which no response is required and is therefore
denied.
66.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
67.
68.
COUNT VI
Paragraphs 1 through 66 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
8
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC trade secrets to the course of his employment with JFC. By way of further answer,
JFC's reference to the term "best practices" is meaningless and the same is therefore
denied.
69.
The averment is a legal conclusion to which no response is required and is therefore
denied.
70. The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and reasonably restricted his use of
JFC trade secrets to the course of his employment with JFC.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNT VII
71.
72.
73.
Paragraphs 1 through 70 are incorporated by reference as if set forth in full.
The averment is a legal conclusion to which no response is required and is therefore
denied. To the extent an answer is required, the averment is denied. To the contrary,
Mr. Leach did not have a "competing company" and thus could not have engaged in the
alleged conduct on behalf of a "competing company."
The averment is a legal conclusion to which no response is required and is therefore
denied.
74.
The averment is a legal conclusion to which no response is required and is therefore
denied.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
9
NEW MATTER
75. Mr. Leach incorporates his responses to paragraphs 1 through 74 above as if set forth in
full.
76. The Complaint fails to state a claim on which relief can be granted.
77. The Complaint fails to properly plead a cause of action against Mr. Leach under
Pennsylvania Law.
78. JFC brought this action on behalf of"JFC Personnel Agency" prior to registering "JFC
Personnel Agency" as a fictitious name with the Commonwealth of Pennsylvania,
Department of State, Corporation Bureau.
79. On information and belief, JFC has failed to pay the civil penalty required under 54
Pa.C.S. §331.
80. .IFC is barred from instituting or maintaining this action on behalfo£JFC Personnel
Agency.
81. JFC terminated Mr. Leach's employment on or about September 7, 2001.
82. By terminating Mr. Leach's employment, JFC terminated the effect of the purported
"restrictive covenant" under the doctrine established in Insulation Corp. of America v.
Brobston, 667 A.2d 729 (Pa. Super. 1995).
83. JFC breached its obligations under the document that JFC purports to constitute a
"restrictive covenant," thereby extinguishing any obligations on the part of Mr. Leach
under said document.
84. The document that JFC purports to constitute a "restrictive covenant" is unreasonable
as to geographic scope and time duration and is unenforceable.
85. The Complaint is barred by the doctrine of estoppel.
86. The Complaint is barred by the doctrine of waiver.
87. The Complaint is barred by the doctrine of laches.
88. The Complaint is barred by the doctrine of unclean hands.
89. JFC has not suffered any damages as a result of the matters alleged in the Complaint.
10
90.
To the extent that JFC has suffered any damages, which Mr. Leach denies, then said
damages are proximately caused by JFC's acts or failures to act and are not attributable
to Mr. Leach.
WHEREFORE, Brian A. Leach requests that the Complaint be dismissed, that
judgment be entered in his favor and against JFC Personnel, Inc., and that Mr. Leach be
awarded costs of this action, including reasonable attorneys fees, plus such other further relief
as the Court may find just.
COUNTERCLAIM
AND ACTION FOR DECLARATORY JUDGMENT
91. Paragraphs 1 through 90 are incorporated by reference as if set forth in full.
92. At or about the same time that JFC alleged matters contained in its Complaint, JFC has
directed actions against Mr. Leach related to JFC's allegations in the Complaint that are
thus founded upon the transaction, occurrence, or series of transactions or occurrences
out of which the Complaint arose.
COUNT I
Brian A. Leach v. JFC Personnel, Inc.
Breach of Contract
93. Paragraphs 1 through 96 are incorporated by reference as if set forth in full.
94. JFC promised payment of money to Mr. Leach (the "Compensation") as his
compensation from employment and promised to reimburse expenses that Mr. Leach
incurred in the course of his employment with JFC.
95. The Compensation was based on commissions earned by Mr. Leach's efforts to place
employee candidates with employers.
96. For all relevant periods, the Compensation equaled 50% of the agreed-payment by the
client-employer to JFC.
97. JFC terminated Mr. Leach's employment on September 7, 2001.
11
98.
As of September 7, 2001, Mr. Leach's efforts placed candidates with employers for an
agreed payment and the resulting Compensation due to Mr. Leach as follows:
Candidate Employer Agreed Pai ~ment Com }ensation D
Karin Vargo U~TP~AD $18,750 '~ ............ r ..............
$9,375.00
Alex Richardson Adelphia $14,000 $7,000.00
Marcus Brannac Regency $ 3,159 $1,579.50
Paul Bashen Exel $18,750 $9,375.00
Jason Tuomy Adelphia $18,250 $9,125.00
99.
100.
101.
102.
103.
As of September 7, 2001, and thereafter, JFC has failed to pay Mr. Leach the
Compensation in full or when due, and has failed to reimburse Mr. Leach for expenses
incurred in the course of his employment, without justification and in breach of JFC's
promises to Mr. Leach.
JFC's promise to pay Compensation and/or expenses to Mr. Leach constitutes an
agreement.
JFC is in breach of said agreement.
JFC has refused Mr. Leach's demands to pay Compensation as previously agreed.
As a direct consequence of the breach, Mr. Leach has suffered damages in the amount
of the unpaid Compensation and expenses, plus interest.
WHEREFORE, Brian A. Leach demands judgment in his favor and against JFC
Personnel, Inc., in an amount in excess of the jurisdictional limit for mandatory arbitration of
claims, together with interest plus such other further relief as may be just.
COUNTII
Brian A. Leach v. JFC Personnel, Inc.,
Pennsylvania Wage Payment and Collection Law
104. Paragraphs 1 through 107 are incorporated by reference as if set forth in full.
105. JFC is an "employer" as that term is defined in the Wage Payment and Collection Law,
Act of July 14, 1977, P.L. 82, as amended ("WPCL"), 43 P.S. {}260.1 et seq.
106. JFC is an "employer" as that term is defined in the WPCL.
107. The Compensation constitutes "wages" as that term is defined in the WPCL.
12
108. Mr. Leach is an employee to whom wages are payable within the meaning of the
WPCL.
109. JFC has failed to pay wages to Mr. Leach despite his demand.
110. JFC's non-payment of wages was done deliberately, wantonly and in a bad faith refusal
to avoid a legal obligation and is not justified within the terms of the WPCL, entitling
Mr. Leach to liqu!dated damages therein.
111. JFC's nonpayment of wages entitles Mr. Leach to an award of costs and reasonable
attorney fees from JFC pursuant to the WPCL.
WHEREFORE, Brian A. Leach demands judgment in his favor and against JFC
Personnel, Inc., in an amount in excess of the jurisdictional limit for mandatory arbitration of
claims, together with costs, reasonable attorneys fees, interest and such other further relief as
may be just.
COUNT III
112.
113.
114.
115.
Brian A. Leach v. JFC Personnel, Inc.
Action for Declaratory Judgment
Paragraphs 1 through 111 are incorporated by reference as if set forth in full.
Pursuant to 42 Pa.C.S. §§ 7531 through 7541, this action seeks a Declaratory Judgment
regarding an alleged agreement as between Mr. Leach and JFC purporting to contain a
"restrictive covenant." Mr. Leach specifically seeks the Court's construction of the
"restrictive covenant" and a declaration as to the parties' rights, status, and legal
relations thereunder.
The issues involved in this matter are ripe for judicial determination as an actual
controversy exists between the parties and litigation is imminent and inevitable. JFC
has asserted that action Mr. Leach may take in the future constitutes a breach of the
"restrictive covenant" in question.
Pursuant to Pa. R.C.P. 2130(a), this Court is the proper venue for the instant declaratory
judgment action as Cumberland County is where JFC regularly conducts business in
13
116.
Cumberland County, and also the site of a transaction or occurrence out of which this
action arose.
117.
JFC engaged in the business of finding and placing temporary and permanent
personnel.
Mr. Leach was hired by JFC on or about October 31, 1990 to work as a Technical
Recruiter.
118. JFC alleges that Mr. Leach executed a "restrictive covenant" on or about October 22,
1990, purporting to contain restrictions upon Mr. Leach's ability to compete with JFC.
A copy of the alleged "restrictive covenant" is attached to JFC's Complaint as Exhibit
"A" and incorporated herein by reference.
119. On or about September 7, 2001, JFC terminated Mr. Leach's employment.
120. Having been terminated from JFC, Mr. Leach has concluded that his career prospects
can be satisfied only by operating or working in his field as a personnel searcher.
121. The "restrictive covenant" purports to restrict Mr. Leach's ability to establish an entity
that will engage in the "employment agency business."
122. Mr. Leach seeks clarification as to the enforceability of the "restrictive covenant" given
the circumstances surrounding his termination.
123. Mr. Leach believes and hereby avers that the terms of the "restrictive covenant," as
well as the circumstances surrounding his termination, have rendered the "restrictive
covenant" null and void and otherwise unenforceable by JFC.
124. 42 Pa. C.S. § 7533 provides in pertinent part as follows:
Any person interested under a... written contract.., may have determined any
question of construction or validity arising under the instrument.., and obtain a
declaration of rights, status or other legal relations thereunder.
125. Mr. Leach was performing faithfully for .IFC in a manner warranting continued
employment at the time of his termination.
126. Prior to his termination of employment, Mr. Leach had not taken any action to establish
an employment agency business that would violate the alleged "restrictive covenant"
14
but rather investigated the creation of a Maryland corporation that would not compete
with JFC.
127. Mr. Leach was ready, willing and able to faithfully continue his employment with JFC
at the time of his termination.
128. JFC's termination of Mr. Leach's employment has rendered the alleged "restrictive
covenant" null and void and otherwise unenforceable, Insulation Corp. of America v.
Brobston, 667 A.2d 729 (Pa. Super. 1995); All-Pak, Inc. v. ,Johnston, 694 A.2d 347
(Pa. Super. 1997).
129. The "geographic scope" of the Agreement purports to restrict Mr. Leach's ability to
engage in the employment agency business anywhere within a 75 mile radius of any
city in which a JFC office is located.
130. The Agreement is overly broad as to its geographic scope and should not be enforced
by this Honorable Court. Sidco Paper Co. v. Aaron, 351 A.2d 250 (Pa. 1976).
131. The Agreement in question is an unreasonable restraint on Mr. Leach's ability to
engage in his profession or trade.
132. Enforcement of the Agreement would work an undue hardship on Mr. Leach effectively
prohibiting him from earning a living.
133. Enforcement of the Agreement is not necessary to protect the legitimate business
interests of JFC.
134. A declaratory judgment should enter pursuant to 42 Pa.C.S. §7533 to determine
Leach's rights pursuant to the "restrictive covenant."
WHEREFORE, Defendant Brian A. Leach respectfully requests judgment in his favor
and against JFC and asks that this Honorable Court: (I) determine the foregoing questions of
construction under the "restrictive covenant;" (2) declare the rights, status and the legal
relations of the parties under the "restrictive covenant;" (3) hold that the terms of the
"restrictive covenant" do not limit or preclude Mr. Leach from engaging in or being employed
by a personnel st,affing service in the State of Maryland or the Commonwealth of
Pennsylvania; (4) find that Mr. Leach is free to establish a business that is engaged in
15
personnel staffing services in the State of Maryland or the Commonwealth of Pennsylvania;
and (5) award Mr. Leach costs of this action, including reasonable attorneys fees.
Respectfully submitted,
CLARK LAW OFFICE
Dated: December 27, 2001
Frank P. Clark, Attorney I.D. #35443
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
16
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a true and correct copy of the
foregoing Answer to Complaint with New Matter, Counterclaim, and Action for Declaratory
Judgment upon the following below-named party by depositing same in the U.S. Mail, postage
pre-paid, at Camp Hill, Pennsylvania, this 27th day of December, 2001.
SERVED UPON:
Stephen L. Grose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
17
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.,
d/b/a JFC PERSONNEL AGENCY
Plaintiff,
V.
BRIAN A. LEACH
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
ORDER OF COURT
AND NOW, this r/ it4 day of ~2.I/~, 200Z upon consideration of
the
within
averments, Defendant's Motion for Leave to File Amended Answer with New Matter,
Counterclaim, and Action for Declaratory Judgment is hereby GRANTED.
BY THECOURT:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, 1NC., :
d/b/a JFC PERSONNEL AGENCY :
Plaintiff
V.
BRIAN A. LEACH
Defendant
JAMES F. CARCHIDI and
LINDA CARCHIDI
Additional Defendants
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
:
JURY TRIAL DEMANDED
PRAECIPE TO ATTACH VERIFICATION OF BRIAN A. LEACH
TO THE PROTHONOTARY:
Kindly attach the enclosed Verification of Brian A. Leach to the Amended
Answer to Complaint with New Matter, Counterclaim, and Action for Declaratory
Judgment filed on 'December 27, 2001.
CLARK LAW OFFICE
Dated: January 23, 2002
By:
Frank P. Clark, I.D. #35443
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
(717) 731-8600
VERIFICATION
The undersigned, BRIAN A. LEACH, hereby verifies that the facts set forth in the
foregoing Amended Answer to Complaint with New Matter, Counterclaim, and Action
for Declaratory Judgment are true and correct to the best of his knowledge, information
and belief and further states that statements made herein are made subject to the penalties
of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
BRIAN A. LEACH
Dated: January)-q, 2002
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a true and correct
copy of the foregoing Praecipe to Attach Verification of Brian A. Leach to the
Amended Answer to Complaint with New Matter, Countemlaim, and Action for
Declaratory Judgment filed on December 27, 2001 upon the following below-
named party by depositing same in the U.S. Mail, postage pre-paid, at Camp Hill,
Pennsylvania, this 23th day of January, 2002.
SERVED UPON:
Stephen L. Grose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PESONNEL, INC.
dfo/a IFC Personnel Agency,
Plaintiff
Civil Action - Equity
BRIAN A. LEACH,
Defendant
Civil Division
No. 01-5209 Equity Term
PLAINTIFF'S RESPONSE TO NEW MATTER AND
COUNTERCLAIM OF DEFENDANT
AND NOW, comes the plaintiff, IFC Personnel, Inc., d/b/a IFC Personnel Agency
("IFC"), by and through its counsel, Keefer Wood Allen & Rahal, LIP, and files this response to
the new matter and eounterelaims of defendant, averring as follows:
75. Paragraphs 1 through 74 of the complaint are incorporated herein by reference as
if set forth in full.
76. Paragraph 76 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
77. Paragraph 77 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
78. Admitted. By way of further answer, JFC registered IFC Personnel Agency with
the Department of State on September 14, 2001.
79. Denied as stated. It is denied that a civil penalty is proper under 54 Pa. C.S.
§3331 or that one has been demanded.
80. Paragraph 80 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
81. Admitted. By way of further answer, Mr. Leach was terminated for willful
misconduct.
82. Paragraph 82 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
83. It is specifically denied that IFC breached any obligations, contractual or
otherwise, owed to Mr. Leach. The remaining allegations of paragraph 83 contain a conclusion
of law to which no response is required. To the extent a response is deemed necessary, it is
denied and strict proof thereof demanded at the time of trial.
84. Paragraph 84 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
2
85.
the extent a response is deemed necessary, it is denied and strict
time of trial.
86.
the extent a response
time of trial,
87.
Paragraph 85 contains a conclusion of law to which no response IS required. To
proof thereof demanded at the
Paragraph 86 contains a conclusion of law to which no response
is deemed necessary, it is denied and strict proof thereof demanded at the
required. To
Paragraph 88 contains a conclusion of law
89.
To
is denied and strict proof thereof demanded at the
to which no response is required. To
deemed necessary, it is denied and strict proof thereof demanded at the
Paragraph 89 contmns a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it
time of trial.
90.
is denied and strict proof thereof demanded at the
Paragraph 90 contains a conclusion of law to which no response ~s required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
WHEREFORE, JFC requests that the relief sought in its complaint be granted.
time of trial.
88.
the extent a response is
time of trial.
Paragraph 87 contains a conclusion of law to which no response is required.
the extent a response is deemed necessary, it
COUNTERCLAIM AND ACTION FOR DECLARATORY JUDGMENT
91. Paragraphs 1 through 90 of the complaint and as stated above are incorporated
here by reference as if set forth in full.
92. Paragraph 92 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
COUNT I - BRIAN A. LEACH v..IFC PF~R~qONNEL, INC
(BREACH OF CONTRACT)
93. Paragraphs 1 through 92 contained in the complaint and as set forth above are
incorporated here by reference as if set fo~h in full.
94. Admitted that Mr. Leach was to be compensated and reimbursed for expenses as
per his employment agreement and the polices of IFC.
95. Denied as stated. Initially, compensation paid to Mr. Leach was not based solely
on commissions, but later in his employment and at the time of his separation of employment, his
compensation was based solely on commissions.
96. Denied as stated. During the time that Mr. Leach was an employee of IFC, his
compensation equaled 45% of the funds received by IFC from the client employer in the month
received. In addition, an additional 5% commission was paid on a quarterly basis, based on
commissions received during the quarter. Compensation to Mr. Leach after tenmination of his
employment was on a different basis, as per the terms of his employment agreement.
4
97. Admitted. By way of further answer, Mr. Leach's employment was terminated for
willful misconduct.
98. Denied as stated. All of these placements were new placements and therefore
were subject to the 90 day guarantee period such that they were not considered "permanently
placed" and therefore, commissions were not due and owing until 90 days after their respective
start dates.
99.
Denied. It is specifically denied that JFC failed to pay Mr. Leach the
compensation due under his employment agreement. It is further denied that JFC is in breach of
any promise to Mr. Leach regarding compensation of any manner.
100. Paragraph 100 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
101. It is specifically denied that JFC is in breach of any agreement that relates to Mr.
Leach. To the contrary, JFC has paid all commissions when due and owing Mr. Leach in
accordance with the employment agreement between JFC and Mr. Leach.
102. It is admitted only that JFC has refused to pay demands for commissions made by
Mr. Leach that were improper.
103. Paragraph 103 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
5
WHEREFORE, JFC requests that this Honorable Court enter judgment in its favor and
against the defendant and dismiss Count I of the Countemlaim and grant such other relief as it
deems fair and just.
COUNT II - BRIAN A. LEACIt v..IFC PERSONNEL, INC.
(PENNSYLVANIA WAGE PAYMENT & COLLECTION LAW)
104. Paragraphs 1 through 103 contained in the complaint and as set forth above are
incorporated here by reference as if set forth in full.
105. Paragraph 105 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and s~ct proof thereof demanded at the
time of trial.
106. Paragraph 106 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
107. Paragraph 107 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
108. Paragraph 108 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
109. Denied as stated. It is admitted that Mr. Leach, through his counsel, has made a
demand for payment of commissions, to which Mr. Leach is not entitled under his employment
agreement.
110. Denied. It is specifically denied that Mr. Leach was not paid wages to which he
was entitled. The remaining allegations in paragraph 110 contain conclusions of law to which no
response is required. To the extent a response is deemed necessary, they are denied and strict
proof thereof demanded at the time of trial.
111. Denied. It is specifically denied that Mr. Leach was not paid wages to which he
was entitled. The remaining allegations in paragraph 111 contain conclusions of law to which no
response is required. To the extent a response is deemed necessary, they are denied and strict
proof thereof demanded at the time of trial.
WHEREFORE, JFC requests that this Honorable Court enter judgment in its favor and
against the defendant and dismiss Count II of the Counterclaim and grant such other relief as it
deems fair and just.
COUNT III - BRIAN A. LEACH v..IFC PERSONNEL, INC.
(ACTION FOR DECLARATORY JUDGMENT)
112. Paragraphs 1 through 111 contained in the complaint and as set forth above are
incorporated here by reference as if set forth in full.
113. Paragraph 113 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
114. It is admitted that an actual controversy exists between the parties on the basis of a
restrictive covenant. After reasonable investigation, JFC can neither admit nor deny whether Mr.
Leach may take actions in the future that would constitute a breach of his restrictive covenant
with JFC. Accordingly, the same are denied and strict proof thereof demanded at the time of
115. Admitted.
116. Admitted. By way of further answer, JFC engages in staffing solutions for
employers and provides employment opportunities for individuals seeking temporary and
permanent employment.
117. Admitted.
118. Admitted.
119. Admitted. By way of further answer, his employment was terminated because of
his wilful misconduct.
120. After reasonable investigation, JFC is without sufficient knowledge or
information to form a belief as to the truth of the matters asserted. Accordingly, they are denied
and strict proof thereof demanded at the time of trial.
121. Denied as stated. The restrictive covenant contained in Mr. Leach's employment
agreement, being a writing, speaks for itself.
122. After reasonable investigation, JFC is without sufficient knowledge or
information to form a belief as to the truth of the matters asserted. Accordingly, they are denied
and strict proof thereof demanded at the time of trial.
123. Denied. It is specifically denied that the restrictive covenant is null and void or
otherwise unenforceable by JFC or that any circumstances surrounding Mr. Leach's termination
would have any adverse impact on the enforceability of the restrictive covenant. To the contrary,
it applies upon the termination of employment by Mr. Leach, "for any mason whatsoever."
124. Paragraph 124 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
125. Denied. Mr. Leach was not faithfully performing for JFC in a manner that
warranted continued employment at the time of his termination. To the contrary, he was engaged
in wilful misconduct in that he, inter alia, a) was attempting to establish a competing business
with JFC within the area of the restrictive covenant, b) was attempting to solicit employees of
JFC to join him in his competing business, c) was broaching his fiduciary duties to act in the best
interests of JFC, d) lied on several occasions to IFC with regard to his involvement in forming a
corporation and discussions with Stephen St. John, and e) had engaged in a course of conduct
alienating co-workers in a manner contrary to the interests of IFC.
126. Denied. By way of fu~her answer, the allegations contained in the complaint in
this matter, as well as the statements contained in the affidavit of Stephen St. John attached as an
exhibit to the motion for preliminary injunction, are incorporated hem by reference as if set forth
in full.
9
127. Denied. Mr. Leach lied to JFC personnel on several occasions regarding
his involvement in starting a competing company with JFC and in his solicitation of IFC
employees. The allegations in paragraphs 125 and 126 above are incorporated here by reference.
128. Paragraph 128 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
129.
130.
Denied. The restrictive covenant, being a writing, speaks for itself.
Denied. Paragraph 130 contains a conclusion of law to which no response is
required. To the extent a response is deemed necessary, it is denied and strict proof thereof
demanded at the time of trial.
131. Paragraph 131 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
132. Paragraph 132 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
133. Paragraph 133 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
10
134. Paragraph 134 contains a conclusion of law to which no response is required. To
the extent a response is deemed necessary, it is denied and strict proof thereof demanded at the
time of trial.
WHEREFORE, JFC requests that this Honorable Court enter judgment in its favor and
against the defendant and dismiss Count llI of the Counterclaim and grant such other relief as it
deems fair and just.
Respectfully submitted,
KEF. FER WOOD AT J.RN & RAHAL, IJ.P
Dated: January ~fi¢, 2002
STI~HEN L. GROSE
Attorney I.D. #31006
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorneys for plaintiff
11
VERI_F_ ICATIO_.N
The undersigned, Steve Martin, General Manager of JFC Personnel, Inc., hereby verifies
and states that:
1. He is authorized to sign this verification on behalf of JFC Personnel, Inc.;
2. The responses set forth in the foregoing Response to Defendant's New Matter,
Counterclaim are tree and correct to the best of his knowledge, information, and belief; and
3 He is aware that false statements herein are made subject to the penalties of 18 Pa.
C.S. § 4904, relating to unswom falsification to authorities.
Steve Martin
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Frank P. Clark, Esquire
Clark Law Office
3045 Market Street, 2~ Floor
Camp Hill, PA 17011
KEEFER WOOD Al I.I~N & RAHAL, lJ.p
~/~eph~n L. G-rose
Dated: January. ,:~?t, 2002
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten end sukmitted in duplicate)
TO THE PNOTHONOTARY OF CUmbERLAnD COUNTY
Please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
JFC PERSONNEL, INC.
d/b/a JFC PERSONNEL AGENCY
( Plaintiff )
vs.
( Defendant )
vs.
( check one )
( ) Civil Action - Law
( ) Appeal fro~Arbitration
(X) Civil Action - Equity
(other)
The trial list will be called on
and
Trials commence on
Pretrials will be held on
(Briefs are due 5 days before pretrials. )
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1. )
No. 01-5209 Civil Division 1~ 2001
Indicate tbe attorney who will try case for the party who files this praecipe..
Frank P. Clark Clark Law Office, 3045 Market St., 2nd Fl., Camp Hill, PA 17011
Indicate trial counsel for other parties if known.- Stephen L. Grose
Keefer Wood Allen & Rahal, T.T.P, 210 Walnut Street, Harrisburg, PA 17101
This case is ready for trial.
Dete:
2/6/02
Print Name: Frank P. Clark
Attorney for.. Defendant, Brian A. Leach
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a true and correct
copy of the foregoing Praecipe for Listing Case for Trial upon the following
below-named party by depositing same in the U.S. Mail, postage pre-paid, at Camp
Hill, Pennsylvania, this 6th day of February, 2002.
SERVED UPON:
Stephen L. Grose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
JFC PERSONNEL, INC., :
D/B/A JFC PERSONNEL :
AGENCY, :
Plaintiff :
:
V.
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 4t~ day of March, 2002, upon consideration of Defendant's
Praecipe for Listing Case for Trial, and the attached letter from Plaintiff's counsel, a
pretrial conference in the above matter is scheduled for Thursday, April 11, 2002, at 1:30
p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle,
Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with
C.C.R.P. 212-4, at least five days prior to the pretrial conference.
BY THE COURT,
esley oler, ff3:~ -' .J~
~,8~ePhen L. Grose, Esq.
Keefer, Wood, Allen & Rahal, LLP
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963 >
Attorney for Plaintiff
Frank P. Clark, Esq.
~ff45 Market Street, 2nd Floor
Camp Hill, PA 17011
Attorney for Defendant
:rc
PP~ECIPE FOI~ LISTING CASE FOR TI~IAL
KFB 2 ? 2002
TO THE PBOT~ONOTARY OF Ct~ ~
Please list the following case: ~ ~x: ,,
(Check one) ( ) for JURY trial at the next term of civil
( X ) for trial ~d. tbeut a jury. ~ ,~.~
· -~c:~'r'-~ --~~
CAPTION OF CASE
(entire caption must be stated in full )
d/b/a JFC PERSONNEL AGENCY
(Plaintiff)
VS.
( Defendant )
VS.
( check one ) ~ -.a ~.'
( ) Civil Action - Law
( ) Appeal from Arbitration
(X) Civil Action - Equity
(other)
The trial list ~rll I be called on
and
Tria]~ cc~Trence on
Pretrj~l~ w-ill be held on
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
al] counsel, pursuant to local Rule 214.1.)
No. 01-5209 Civil Division 19-2001
Indicate the attorney whow~ll try case for the partywho files this praecipe:
Frank P. Clark Clark Law Office, 3045 Market St., 2nd Fl., Camp Hill, PA 17011
Indicate trial counsel for other parties if known: Stephen L. Grose
KeeferWoodAllen & Rahal, LT.P, 210 Walnut Street, Harrisburg, PA 17101
~nis case is r~ady for trial.
Date: 2/6/02
Print N~me.- Frank P. Clark
Attorney for: Defendant, Brian A. Leach
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a true and correct
copy of the foregoing Praecipe for Listing Case for Trial upon the following
below-named party by depositing same in the U.S. Mail, postage pre-paid, at Camp
Hill, Pennsylvania, this 6th day of February, 2002.
SERVED UPON:
Stephen L. Grose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
0 '7 2002
HEATH L. ALLEN
N. DAVID RAHAL
CHARLES W, RUBENDALL Tr
ROBERT L. WELDON
KEefeR WOOD ALLEN & RAHAL, LLP
210 WALNUT STREET
R O. BOX 11963
HARRISBURG, PA 17108-1963
SIN NO. 23-071BI35
February 6, 2002
OF COUNSEL:
SAMUEL C. HARRY
WEST SHORE OFFICE:
415 FALLOWFIELD ROAD
CAHP HILL, PA 1701l
255-8052
sgrose @keeferwood.com
2nd floor fax: 255-8003
Richard J. Pierce
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013-3387
Re:
JFC Personnel, Inc. v. Brian A. Leach
Cumberland County CCP No. 01-5209 Equity Term (Judge Oler)
Dear Mr. Pierce:
Under cover letter dated February 1, 2002, I received a copy of the praecipe to list this case
for non-jury trial filed by Mr. Clark. There are various issues as to whether this matter can and
should be listed for trial at this juncture, which include discovery and possible bifurcation of the
initial claim from the counterclaims. Accordingly, I request that Judge Oler schedule a status
conference, so that we can discuss this case and determine the appropriate procedure to follow. Mr.
Clark concurs in this request.
In the alternative, ifa status conference is not permitted, please accept this as my formal
objection to listing this case for non-jury trial, since discovery, has not been completed. The
defendant's answer, new matter and counterclaim was not filed until January 7, 2002 and the reply
thereto was filed on January 25, 2002. Plaintiff has not had the opportunity to conduct the
appropriate discovery.
I would request that you forward this letter to Judge Oler's chambers, along with the praecipe
requesting the matter be listed for non-jury trial.
Sincerely,
KEEFER WOOD ALLEN & RAHAL, LLP
Stephen L. Grose
SLG/krh
cc: Frank P. Clark, Esquire
JFC PERSONNEL, INC., :
D/B/A JFC PERSONNEL :
AGENCY, :
Plaintiff
BRIAN A. LEACH,
Defendant
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 6m day of March, 2002, upon request of Plaintiffs counsel,
Stephen L. Grose, Esq., and with no objection from Frank P. Clark, attorney for
Defendant, the pretrial conference previously scheduled in the above matter for April 11,
2002, is rescheduled to Monday, April 22, 2002, at 2:45 p.m., in chambers of the
undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial
memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least
five days prior to the pretrial conference.
BY THE COURT,
/~p~h en L. Esq.
Grose,
Keefer, Wood, Allen & Rahal, LLP
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963 ~
Attorney for Plaintiff
P. Clark, Esq.
~'Market Street, 2nd Floor
Camp Hill, PA 17011
Attorney for Defendant
~3r~
:rc
JFC PERSONNEL, INC.,
D/B/A JFC PERSONNEL
AGENCY,
Plaintiff
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, pENNSYLVANIA
CIVIL ACTION - EQUITY
01-5209 EQUITY TERM
IN RE: PRETRIAL CONFERENCE
ORDER OF COURT
A pretrial conference was held in the chambers of
Judge Oler in the above-captioned case on Monday, April 22, 2002.
Present on behalf of the Plaintiff was Stephen L. Grose, Esquire.
Present on behalf of the Defendant was Frank P. Clark, Esquire.
This is an action in equity to, inter alia, enjoin an
alleged breach of a covenant not to compete incident to an
employment contract. Defendant has counterclaimed for a
declaratory judgment, with respect to the validity of the covenant
not to compete, inter alia.
This will be a nonjury trial of an estimated duration
of 2 days.
By separate order of court,
scheduled for Wednesday, July 31, 2002,
the nonjury trial will be
and Thursday, August 1,
2002.
S/tephen Lo Grose, Esquire
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011
For the Plaintiff
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
By the Court,
Jt Wesley 0~, J ~.; W.
pcb
JFC PERSONNEL, INC., :
D/B/A JFC PERSONNEL :
AGENCY, :
Plaintiff :
BRIAN A. LEACH, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, pENNSYLVANIA
CIVIL ACTION - EQUITY
01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 22nd day of April, 2002, the nonjury
trial in the above-captioned case is scheduled for Wednesday, July
31, 2002, at 9:30 a.m. and Thursday, August 1, 2002, at 9:30 a.m.
By the Court,
/~ephen L. Grose, Esquire
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011
For the Plaintiff ~
~rank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
esley Ow, Jr. ,~-~.
pcb
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.,
d/b/a JFC PERSONNEL AGENCY
BRIAN A. LEACH
Plaintiff, :
:
Defendant :
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
DEFENDANT'S MOTION IN LIMINE
Defendant Brian A. Leach requests that the Court enter an order limiting the areas
of testimony and evidence presented by Plaintiff JFC Personnel, Inc. ("JFC") in the
above-captioned matter and avers in support thereof as follows:
1. JFC filed the instant complaint on September 4, 2001.
2. On September 13, 2001, the Court heard testimony and evidence on JFC's
claim that it was entitled to injunctive relief and denied JFC's motion for
Preliminary Injunction on or about September 14, 2001.
3. On October 25, 2001, Mr. Leach served three discovery requests on JFC,
namely Requests for Admissions, Interrogatories and a Request for
Production of Documents. A true and correct copy of the Request for
Admissions is attached as Exhibit A.
4. On November 26, 2001, JFC served its responses to Defendant's
discovery; a true and correct copy of JFC's Answer to the Request for
Admissions is attached as Exhibit B.
5. On July 12, 2002, Mr. Leach took the deposition ora JFC employee after
JFC identified that person on July 3, 2002 as a potential witness.
6. There has been no other discovery between the parties.
7. JFC's Complaint pertains to seven counts, including claims for Injunctive
Relief, Fraud, Tortious Interference with Business Relations, Breach of
Contract, Conversion, Trade Secrets, and Breach of Fiduciary Duty.
8. Mr. Leach's Request for Admissions inquired in part as to the evidence
that JFC had to support its varied claims against Mr. Leach.
As to Mr. Leach's alleged Fraud, his Request for Admission and JFC's
corresponding response are as follows:
· Mr. Leach's Request for Admi,~sion No. 7:
Admit that JFC has identified no fraudulent misrepresentations or
concealments by Brian A. Leach to JFC, as alleged in Count II of the
Complaint.
If your answer to Admission No. 7 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
information concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
· JFC's Response to Request No. 7:
Denied. Mr. Leach misrepresented facts to James Carchidi, Karen
Savage and Steve Martin on September 6, 2001, and September 7,
2001, about his relationship with Mr. Stephen St. John and whether or
not he was involved in starting a new business. Initially he denied any
involvement whatsoever, then he recanted and admitted that he was
involved in starting a new business, but that it was Stephen St. John's
idea. Subsequently he recanted that testimony and told Mr. Martin
that he did have an EIN number for a new business and that he was
planning on going into business with Mr. St. John for about six (6)
months and then cut him out, since he wouldn't be needed any longer.
10. As to Mr. Leach's Breach of Contract, his Request for Admission and
JFC's corresponding response are as follows:
Mr. Leach's Request No. 14:
Admit that JFC has identified no contract that Brian Leach has
breached.
If your answer to Admission No. 14 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
information concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
JFC's Response to Request No. 14:
Denied. Mr. Leach has breached his employment contract in that he
attempted and intended to breach the covenant not to compete. Further
he breached his fiduciary duty to work only for JFC and its interests
and not to use their assets in the furtherance of some entity other than
JFC. He attempted to solicit other employees and engaged in activities
in violation of his covenant not to compete and he attempted to use
candidates from JFC for placements with another employment agency
in the trial balloon (an imbedded C++ programmer) situation.
Discovery is ongoing and JFC reserves the fight to supplement this
response as appropriate.
· Mr. Leach's Request No. 15:
Admit that JFC has identified no information to support its allegation
of a breach of contract beyond that which JFC presented or attempted
to present at a hearing before Judge J. Wesley Oler, Jr. on September
13, 2001.
If your answer to Admission No. 15 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
information concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
· JFC's Response to Request No. 15:
Denied. See response to No. 14 above. To the extent that the
preliminary injunction hearing was an abbreviated hearing and
restricted dramatically the evidence that JFC was permitted to address,
there is additional testimony that JFC would introduce to substantiate
the allegations contained in response to No. 14.
11. As to Mr. Leach's alleged Interference with Prospective Business
Relationships, his Request for Admission and JFC's corresponding
response are as follows:
· Mr. Leach's Request No. 12:
Admit that JFC has identified no existing or prospective business
relationship between JFC and an employer or prospective employer
that Brian A. Leach has interfered with.
If your answer to Admission No. 12 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
information concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
· JFC's Response to Request No. 12:
Admitted to date, however, discovery is not complete and JFC reserves
the right to supplement this response as appropriate.
· Mr. Leach's Request No. 13:
Admit that JFC has identified no existing or prospective business
relationships between JFC and candidates for employment that Brian
A. Leach has interfered with.
If your answer to Admission No. 13 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
information concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
· JFC's Response to Request No. 13:
Admitted to date, however, discovery is not complete and JFC reserves
the right to supplement this response as appropriate.
12. As to Mr. Leach's alleged Conversion of assets, his Request for
Admission and JFC's corresponding response are as follows:
· Mr. Leach's Request No. 16:
Admit that JFC has identified no JFC resources that Brian A. Leach
has used to generate revenue, as JFC alleges in Paragraph 64 of the
Complaint.
If your answer to Admission No. 16 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
infom~ation concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
· JFC's Response to Request No. 16:
Denied as stated. Based upon information and belief, JFC avers that
Mr. Leach may have used online information for which JFC pays a
subscription fee. Mr. Leach had access to Internet job boards where
JFC has paid subscriptions for job posting and to search resume
databases. The job boards include "Monster. com" and
"HeadHunter.net," on a continual basis. JFC also subscribes to other
Internet sites for trial periods when evaluating the usefulness of job
posting and resume retrieval boards. Mr. Leach had access to these at
this (sic) home, as well as at work. Discovery is ongoing and JFc
reserves the right to supplement this response as appropriate.
13. JFC has provided no additional information to supplement or otherwise
substantiate its "information and belief" as to the alleged conversion of
assets described in its Response to Request No. 16.
14. As to Mr. Leach's alleged use of Trade Secrets, his Request for Admission
and JFC's corresponding response are as follows:
Mr. Leach's Request No. 17:
Admit that JFC has identified no JFC trade secrets that Brian A. Leach
used on behalf of a "competing company," as JFC alleges in Count VI
of the Complaint.
If your answer to Admission No. 17 is anything other than an
unqualified admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and
employer of individuals who you claim possess knowledge or
information concerning the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other
evidence that supports your answer.
· _JFC's Response to Request No. 17:
Denied as stated. It is not known at this juncture whether Mr. Leach
used trade secrets on behalf ora competing company or attempted to
do so. Discovery is ongoing and JFC reserves the right to supplement
this response as appropriate.
15. JFC has taken no discovery following its response to the above-described
discovery items.
16. JFC has not supplemented or amended the discovery responses as
indicated above.
17. JFC has not produced any discovery material since its response to the
three items described in paragraph 4.
18. JFC's statements constitute admissions that are binding upon it at trial.
19. JFC's responses to Mr. Leach's requests for admissions regarding JFC's
claims are of three general categories:
ao
Answers, such as in its responses to Request Nos. 13, 16, and 17,
where JFC admitted that it possessed no evidence to support a
claim and/or failed to supplement discovery with any evidence
supporting the claim, in which event JFC's responses should be
deemed an admission that JFC possesses no evidence to support its
claims on those matters.
bo
Answers, such as in its response to Request No. 7, where JFC
purported to describe all facts on which it would prove a claim, in
which event its response should be deemed an admission that JFC
possesses no other evidence to support its claims on that matter.
c. Answers, such as in its responses to Request Nos. 14 and 15,
where JFC purported to describe all facts on which it would prove
a claim, in which event its response evidences facts irrelevant to
the claim and should be deemed an admission that JFC possesses
no other evidence to support its claims on that matter.
20. JFC should be directed at trial to present only evidence that is consistent
with the Admissions described above, and an order should be entered
barring JFC from presenting evidence that adds to or deviates in any
manner from the matters admitted in JFC's responses.
WHEREFORE, Defendant Brian Leach requests that this Court enter an order
limiting the evidence that JFC presents at trial as follows:
ao
with regard to the allegation of fraud, JFC is limited to presenting
evidence only that relates to its contention in response to Request
for Admission # 7 that Mr. Leach allegedly misrepresented facts to
James Carehidi, Karen Savage and Steve Martin on September 6
and 7, 2001;
bo
with regard to the allegation of Breach of Contract, JFC is limited,
to the extent such evidence is otherwise admissible, to presenting
evidence that Mr. Leach "attempted and intended to breach the
Co
do
Dated: July 25, 2002
covenant not to compete.., attempted to solicit other employees...
attempted to use candidates from JFC for placements with another
employment agency."
with regard to the allegation of Interference with Prospective
Business Relationships, JFC is bound by its admission that no
evidence of the same exists.
with regard to the allegation of Conversion of assets, JFC's
admission that its allegation was based on information and belief
and its failure to supplement its admission with evidence in the
course of discovery binds JFC to an admission that no evidence of
the same exists.
with regard to the alleged use of Trade Secrets, JFC is bound by its
admission that no evidence of the same exists.
Respectfully submitted,
CLARK LAW OFFICE
By:
Frank P. Clark, I.D. #35443
3045 Market Street, 2na Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
9
CERTIFICATE OF CONCURRENCE
I, FRANK P. CLARK, ESQUIRE, do hereby certify that pursuant to Local Rule
206-2, I sought concurrence in this Motion by phoning Plaintiff's counsel, Stephen L.
Grose, on the 25th day of July, 2002, and that concurrence was not granted.
Frank P. Clark, Esquire
10
Exhibit A
IN ~ COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.,
cifo/a .IFC PERSONNEL AGENCY
Vo
BRIAN A. LEACH
Plaintiff,
Defena~nt
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
REQUEST OF BRIAN A. LEACH TO JFC PERSONNEL~ INC.,
FOR ADMISSIONS - FIRST SET
TO:
JFC Personnel, Inc.
c/o: Stephen L. Grose
KEEFER, WOOD, ALLEN & RAHAL
210 Walnut Street
Harrisburg PA 17101
Brian A. Leach ("Leach") serves upon Plaintiff, JPC Personnel, Inc. ("J-FC") the
following written request for admissions for purposes of the above-captioned action
pursuant to Pa. Rule of Civil Procedure No. 4014.
As mandated by Pa. R.C.P. No. 4014, all requests for admissions submitted hereto
shall be deemed admitted unless, within thirty (30) days plaintiff herein serves an answer
verified by that plaintiff or an objection. If an objection is made, the reasons therefore
shall be stated. All answers shall admit or deny the matter or set forth in detail the
reasons why the answering person cannot math_fully do so. Lack of information or
knowledge shall not be deemed a reason for failure to admit or deny unless the plaintiff
states that they have made a reasonable inquiry and the information known or readily
obtainable by the plaintiff'is insufficient to enable them to admit or deny.
DEFINITIONS AND INSTRUCTIONS
The words "relating to" when used in thi~ Request for Admissions mean concerning,
touching upon, referring to, connecting with, commenting on, impinging or impacting upon,
affecting, responding to, showing, describing, analyzing, reflecting, or constituting.
"Action" means the legal proceeding initiated in the Court of Common Pleas of
Cumberland County, Docket number No. 01-5209 Equity TemL captioned .rFC Personnel,
Inc., Plaintiff v. Brian A. Leach, Defendant.
"Admission" mean.~ Request of Brian A. Leach to .IFC Personnel, Inc. for
Admissions--First Set.
Brian A. Leach, or Mr. Leach--mean.~ Brian A. Leach, Defendant in the Action.
"Document" means any written, printed, typed, or other graphic matter of any kind
or nature, however produced or reproduced, including photographs, microfilms,
phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drum~,
and other data compilations from which information can be obtained.
"Identify" means;
(1) A natural person his or her:.
(a) full nme;
Co)
present or last known residence and employment address
(including street name and number, city or town, and state or
county);
(2) A document:
(a)
its description (e.g., letter, memorandum, report, etc.), rifle,
and date; whenever you are asked to "identify" a document,
the following information should be given as to each
document of which you are aware, whether or not you have
possession, custody or control thereof;
Co) its subject matter;,
(c)
(d)
(e)
(f)
its author's identity;
its addressee's identity;
its present location; and
its custodian's identity;
(3)
(a)
(b)
(c)
(d)
(e)
An oral communication:
its date;
the place where it occurred;
its substance;
the identity of the person who made the communication;
the identity of each person to whom such communication
was made; and
(f) the identity of each person who was present when such
communication was made;
(4) A corporate entity:
(a) its full corporate name;
its date and place of incorporation, if known; and
(5)
(c) its present address and telephone number.
any other context: a description with sufficient particularity that the
thing may therea_Ozr be specified and reco~ized, including relevant
dates and places, and the identification of relevant people, entities,
and documents.
"Interrogatory"means Interrogatories of Brian A. Leach to .rFC Personnel, Inc.--
First Set.
"iFC"means IFC Personnel, Inc., t/d/b/a IFC Personnel Agency, and any and all
corporations, parmerships, parmerships, joint ventures, subsidiaries, affiliates, and related
entities.
"Person At Or Above the First Level of Supervision of JFC" means any officer or
director of JFC; or any employee of JFC whose job title includes the term "manager,"
"supervisor" or" officer;," or any person who rates or evaluates employees of.rFC.
"Production" means Request of Brian A. Leach to .rFC Personnel, Inc. for
Production of Documents--First Set.
"WPCL" means the Wage Payment and Collection Law, Act of July 14, 1977,
P.L. 82, as mended, 43, P.S. {}260.1 et seq.
REQUEST FOR ADMISSIONS
REQUEST FOR ADMISSION NO. l'
Admit that the Action arises out of a transaction with respect to JFC's use of the
fictitious name .IFC Personnel Agency.
If your an.qwer to Admission No. 1 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job rifle, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer,
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
4
REQUEST FOR ADMISSION NO. 2:
Admit that .IFC instituted (as that term is used in 54 Pa.C.S. §33 I) the Action before
the date YFC registered the fictitious name "~C Personnel Agency."
If your answer to Admission No. 2 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 3:
Admit that .IFC has not paid a civil penalty of $500 to the Department of State as
provided in 54 Pa.C.S. §33 l(b) for JFC's use of the fictitious name "JFC Personnel
Agency" before registering said name.
If your answer to Admission No. 3 is anything other than an unqualified
admission, please provide the following:
(a)
Co)
(c)
All facts upon which you base your answer;,
Identify the name, address, telephone number, job rifle, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REOUEST FOR Al)MISSION NO. 4:
Admit that IFC has identified no Document it obtained on or after September 14,
2001 that IFC would Il.se to establish at trial that Brian A. Leach violated what IFC
regards as a "restrictive covenant."
If your answer to Admission No. 4 is anything other than an unqualified
admission, please provide the following:
(a)
(c)
All facts upon which you base your answer;
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 5'
Admit that IFC has identified no information it obtained fi.om a person on or after
September 14, 2001 that IFC would use to establish at trial that Brian A. Leach violated
what IFC regards as a "restrictive covenant."
If your answer to Admission No. 5 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 6:
Admit that IFC has identified no person who provided IFC information on or after
September 14, 2001 that IFC would use to establish at trial that Brian A. Leach violated
what .IFC regards as a "restrictive covenant."
If your answer to Admission No. 6 is any~ing other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or in~'o.iiation concerning
the facts set forth in your answer;,
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 7:
Admit that .rFC has identified no fraudulent misrepresentations or concealments
by Brian A. Leach to .IFC, as alleged in Count li of the Complaint.
If your answer to Admission No. 7 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;,
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
.REQUEST FOR ADMISSION NO. 8'
Admit that .rFC has identified no employment placement that Brian A. Leach
made or assisted other than those that occurred in the course of Mr. Leach's employment
with JFC.
If your answer to Admission No. 8 is anything other than an unqualified
admission, please provide the following:
(a) Ail facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 9:
Admit that JFC has identified nothing of value that Brian A. Leach received for
making an employee placement other than compensation from JFC for placements that
occurred in the course of Mr. Leach's employment with IFC.
If your answer to Admission No. 9 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 10'
Admit that JFC has identified no employer or prospective employer with whom
Brian A. Leach made or assisted an employee placement except those occurring in the
course of Mr. Leach's employment with JFC.
If your answer to Admission No. 10 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your a~swer.
REQUEST FOR ADMISSION NO. 11:
Admit that .rFC has identified no employee candidate whom Brian A. Leach
placed, or attempted to place or assisted in the attempt to place, except those occunqng in
the course of Mr. Leach's employment with JFC.
If your answer to Admission No. 11 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO.
Admit that JFC has identified no existing or prospective business relationship
between JFC and an employer or prospective employer that Brian A. Leach has interfered
If your answer to Admission No. 12 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 13:
Admit that JFC has identified no existing or prospective business relationships
between JFC and candidates for employment that Brian A. Leach has interfered with.
If your answer to Admission No. 13 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 14:
Admit that IFC has identified no contract that Brian Leach has breached.
If your answer to Admission No. 14 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
Co) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concemlng
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 15:
Admit that J-FC has identified no information to support its allegation of a breach
of contract beyond that which IFC presented or attempted to present at a heating before
Judge J. Wesley Oler, Jr. on September 13, 2001.
If your answer to Admission No. 15 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b)
Identify the name, address, telephone number, job rifle, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your an.~wer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 16'
Admit that JFC has identified no JFC resources that Brian A. Leach has used to
generate revenue, as JFC alleges in Paragraph 64 of the Complaint.
If your answer to Admission No. 16 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
Co)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;,
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 17:
Admit that ,IFC has identified no .IFC trade secrets that Brian A. Leach used on
behalf ora "competing company," as JFC alleges in Count VI of the Complaint.
If your answer to Admission No. 17 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer,
(b)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;,
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADM/SSION NO. 18:
Admit that JFC ha~ identified no damages suffered on account of any actions
alleged by JFC in the Complaint in this Action.
If your answer to Admission No. 18 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 19:
Admit JFC terminated Brian A. Leach's employment.
If your answer to Admission No. 19 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 20:
Admit that J'FC has not placed a "direct-hire" employee in the State of Maryland
with a client-employer.
If your answer to Admission No. 20 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
Co)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or infotLuation concerning
the facts set forth in your answer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR AD~S$ION ~O. 21,
Admit that the sole reason s'FC terminated Brian A. Leach was its belief that. Mr.
Leach had violated the Document attached to the Complaint as Exhibit "A."
If your answer to Admission No. 21 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer,
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR AD1VtlSSION NO. 22
Admit that JFC's next regular payday after .IFC terminated Brian A. Leach was
October 1, 2001.
If your answer to Admission No. 22 is anything other than an unqualified
admission, please provide the following:
(a) Ail facts upon which you base your answer;,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
.REQUEST FOR ADMISSION NO. 23
Admit that as of September 7, 2001, Brian A. Leach had performed substaat/ally
all of the services that entitle IFC to receive payment for placing Karin Vargo in
employment at USTAAD (the "Vargo Placement").
If your answer to Admission No. 23 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
_REOUEST FOR ADMISSION NO. 24,
Admit that as of September 7, 2001, Brian A. Leach had performed substantially
all of the services that entitle .IFC to receive payment for placing Alex Richardson in
employment at Adelphia (the "Richardson Placement").
If your answer to Admission No. 24 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
_REOUEST FOR ADMISSION NO. 25~
Admit that as of September 7, 2001, Brian A. Leach had performed substantially
all of the services that entitle .IFC to receive payment for placing Man:us Brannac in
employment at Regency (the "Brannac Placement").
If your answer to Adm/ssion No. 25 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 2t[
Admit that as of September 7, 2001, Brian A. Leach had performed substantially
all of the services that entitle JFC to receive payment for placing Paul Bashen in
employment at Exel (the "Bashen Placement").
If your answer to Admission No. 26 is anything other than an unqualified
admission, please provide the following:
(a)
(c)
All facts upon which you base your answer;
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR Al)MISSION NO. 27:
Admit that as of September 7, 2001, Brian A. Leach had performed substantially
all of the services that entitle JFC to receive payment for placing Jason Tuomy in
employment at Adelphia (the '~Fuomy Placement").
If your answer to Admission No. 27 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;,
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REOUEST FOR ADMISSION NO. 28'
Admit tb~t as of October 1,2001, JFC had not paid Brian A. Leach all
compensation for the Va-'go Placement that Mr. Leach would have received but for J'FC's
termination of Mr. Leach.
If your answer to Admission No. 28 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;,
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c)
Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADIVIISSION NO. 29~'
Admit thnt as of October 1, 2001, .rFC had not paid Brian A. Leach all
compensation for the Richardson Placement thst Mr. Leach would have received but for
JFC's termination of Mr. Leach.
If your answer to Admission No. 29 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 30'
Admit that as of October 1, 2001, JFC had not paid Brian A. Leach all
compensation for the Brannac Placement that Mr. Leach would have received but for
JFC's term/nation of Mr. Leach.
If your answer to Admission No. 30 is anything other than an unqualified
admission, please provide the following:
(a) All facts upon which you base your an.qwer;
(b)
(c)
Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
Please identify and produce any and all Documents and/or other evidence
that supports.your answer.
REQUEST FOR ADMISSION NO. 31:
Admit that as of October 1, 2001, JFC had not paid Brian A. Leach all
compensation for the Bashen Placement that Mr. Leach would have received but for
J-FC's termination of Mr. Leach.
If your answer to Admission No. 31 is anything other than an unqualified
admission, please provide the following:
(a) Ail facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
REQUEST FOR ADMISSION NO. 32:
Admit that as of October 1, 2001, JFC had not paid Brian A. Leach all
compensation for the Tuomey Placement that Mr. Leach would have received but for
JFC's termination of Mr. Leach.
If your answer to Admission No. 32 is anything other than an unqualified
admission, please provide the following:
(a) Ail facts upon which you base your answer;
(b) Identify the name, address, telephone number, job title, and employer of
individuals who you claim possess knowledge or information concerning
the facts set forth in your answer;
(c) Please identify and produce any and all Documents and/or other evidence
that supports your answer.
Dated: October 25, 2001
CLARK LAW OFFICE
Frank P. Clark
Attorney I.D. No. 35443
3045 Market Street, 2~ Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
CERTIFICATE OF SERVICE
I, Frank P. Clark, Esquire, do hereby certify that I served a u-ac and correct copy
of the foregoing Request of Brian A. Leach to JFC Personnel, Inc., for Admissions - First
Set, upon the following below-named party by depositing same in the U.S. Mail, postage
pre-paid, at Camp Hill, Pennsylvania, this 25th day of October, 2001.
SERVED UPON:
Stephen L. Grose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
Exhibit B
IN THE COURT OF COh, EVION PLEAS
CUi~tBERLAND COUNTY, PENNSYLVANIA
JFC PESONN'EL, INC.
ctfo/a .IFC Personnel Agency,
Plaintiff
BRIAN A. LEACH,
Defendant
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
RESPONSES OF PLAINTIFF. C PERSONNEL INC.
TO RE UESTS F R ADMISSIONS OF BRIAN A. LEACH - FIRST SET
GENERAL OBJECTION
Plaintiff objects to subsections a, b and c in each of the requests, as they seek information
beyond that which is required to be produced under Pa. R.Civ. P. 4014. That Rule requires that if
a responding party objects, it must explain why it is objecting and further, it must admit or deny,
or partially admit or deny each request, which plaintiff has done. Further, with regard to all
responses, IFC has not yet had the opportunity to conduct discovery since the responsive
pleading to the complaint has not been completed. Therefore, it reserves the right to amend these
responses as appropriate when discovery is completed.
RESPONSES
i. Denied as stated. JFC Personnel, Inc. ("JFC") is a Pennsylvania corporation
incorporated in May 1975. It conducted business under the name of IFC Personnel Agency
because the term "agency" was purportedly required to be used by state regulations at that time.
Mr. Leach was well aware of the relationship between YFC Personnel Agency and IFC at the
time he was employed on October 22, 1990. Further, all checks paid to Mr. Leach for
compensation were drawn on the account of .rFC Personnel Agency.
2. Admitted.
3. Denied as stated. It is admitted only that no fine has been requested from nor paid
by .rFC to the Department of State for the use of JFC Personnel Agency as a fictitious name.
4. Denied. It is unclear from the request as stated whether documents that existed as
of September 14, 2001, are to be included. J'FC contends the sworn affidavit of Stephen St. John
and all exhibits thereto, Mr. Leach's testimony at the prelirninary injunction heating regarding
the "trial balloon" and related documents would support its position that Mr. Leach violated or
intended to violate his'restrictive covenant. Further, subsequent to September 14, 2001, the
Unemployrnent Compensation Board made a determination that Mr. Leach's actions show a
willful disregard of JFC's interests and that a warning to Mr. Leach was not required prior to his
dismissal.
5. Denied as stated. See response to no. 4 above.
6. Denied as stated. See response to no. 4 above.
7. Denied. Mr. Leach misrepresented facts to James Carchidi, Karen Savage and
Steve Mm-tin on September 6, 2001, and September 7, 2001, about his relationship with Mr.
Stephen St. John and whether or not he was involved in starting a new business. Initially he
denied any involvement whatsoever, then he recanted and admitted that he was involved in
starting a new business, but that it was Stephen St. John's idea. Subsequently he recanted that
testimony and told Nit. Martin that he did have an EIN number for a new business and that he
was planning on going into business with Mr. St. John for about six (6) months and then cut him
out, since he wouldn't be needed any longer.
8. Denied as stated. It is admitted that no placements were made to JFC's
knowledge, but discovery is ongoing. It is not known whether the individual referred to in Mr.
Leach's preliminary injunction hearing testimony as the "trial balloon" (the imbedded C~,:
pro~amer) was actually placed or whether Mr. Leach simply requested the assistance of Stephen
St. John in finding an applicant from the personnel base at IFC. Since discovery is ongoing, IFC
reserves the right to supplement this response as appropriate.
9. Admitted, with the qualification that discovery is ongoing and IFC reserves
the right to supplement this response as appropriate.
I0. Admitted, with the qualification that discovery is ongoing and IFC reserves
the right to supplement this response as appropriate.
11. Denied. Mr. Leach sought the assistance of Stephen St. John in finding an
applicant to fill an imbedded C++ programer position that Mr. Leach was attempting to fill for an
agency in the Philadelphia area, while both Mr. Leach and Mr. St. John were employees of IFC.
Mr. Leach solicited the assistance of Stephen St. John to fill that position and requested that he
do so using JFC's applicant data base without advising JFC of the same or having its approval to
do so. Accordingly, Mr. Leach attempted to place candidates outside his course of employment
with IFC on at least one occasion. Discovery is not yet complete and additional instances may
come to light.
12. Admitted to date. however, discovery is not complete and IFC reserves the
right to supplement this response as appropriate.
13. Admitted to date, however, discovery is not complete and IFC reserves the
right to supplement this response as appropriate.
14. Denied. M.r. Leach has breached his employment contract in that he attempted
and intended to breach the covenant not to compete. Further he breached his fiduciary duty to
work only for .IFC and its interests and not to use their assets in the furtherance of some entity
other than JFC. He attempted to solicit other employees and engaged in activities in violation of
his covenant not to compete and he attempted to use candidates from IFC for placements with
another employment agency in the trial balloon (an imbedded C++ programer) situation.
Discovery is ongoing and JFC reserves the right to supplement this response as appropriate.
15. Denied. See response to no. 14 above. To the extent that the preliminary
injunction hearing was an abbreviated hearing and restricted dramatically the evidence that JFC
was permitted to address, there is additional testimony that IFC would introduce to substantiate
the allegations contained in response no. 14.
16. Denied as stated. Based upon information and belief, IFC avers that Mr.
Leach may have used online information for which IFC pays a subscription fee. Mr. Leach had
access to Internet job boards where IFC has paid subscriptions for.job posting and to search
resume databases. The job boards include "Monster.corn" and "HeadHunter.net," on a continual
basis. IFC also subscribes to other Internet sites for trial periods when evaluating the usefulness
of job posting and resume retrieval boards. Mr. Leach had access to these at this home, as well
as at work. Discovery is ongoing and IFC reserves the right to supplement this response as
appropriate.
17. Denied as stated. It is not known at this juncture whether Mr. Leach used trade
secrets on behalf of a competing company or attempted to do so. Discovery is ongoing and IFC
reserves the right to supplement this response as appropriate.
18. Denied as stated. It is admitted that no damages appear to have been suffered as a
result of Mr. Leach attempting to violate this covenant not to compete because he did not do so
subsequent to IFC commencing this action. Since discovery is ongoing, it is not known whether
inappropriate placements have been made and therefore, IFC reserves the right to supplement
this response as appropriate.
19.
20.
21.
reasons:
Admitted.
Admitted, based upon the information and documentation reviewed to date.
Denied. Mr. Leach's employment with IFC was terminated for the following
It was believed that Mr. Leach had violated or was attempting to violate
his covenant not to compete.
It was believed that Mr. Leach breached his fiduciary duties (a) to act in
IFC's behalf, (b) not to attempt to take away IFC employees to start
competing businesses, (c) not to use IFC phones, computers or other
resoumes for his own use or starting up a competing company and (d) not
being forthright with IFC about his involvement with Stephen St. John and
the new entity when initially approached by IFC. He could not thereafter
be trusted.
22. Admitted that IFC's next regular pay day after IFC temtinated Mr. Leach was
October 1, 2001, for commissions earned through September 30, 2001.
23. Denied as stated. With regard to the Vargo placement, the payment for the
placement was to be made in three (3) installments. The first installment of $6,250 was paid on
August 27, 2001, and because Mr. Leach was still an employee on that date, he received 45% of
the $6,250 in his August 31, 2001, pay. He received the other 5% in his bonus paid on
September 30, 2001. Accordingly, he has received his full 50% commission on the first
installment of 56.250, which was received by .IFC while he was an employee. A second
installment of S6.250 was received by IFC on September 26, 2001. However, Mr. Leach was no
longer an employee and therefore the payment on the second and third installments would not be
due until the placement was permanent, as required by the employment agreement. While Mr.
Leach had performed all of his services by September 7, 2001, IFC had not received full payment
by that date and the employment agreement provided for different compensation after Mr.
Leach's employment was terminated.
24. Denied as stated. Mr. Richardson started employment on September 4, 2001, and
the payment of 514,000 was received by IFC on October 8, 2001. On December 4, 2001, Mr.
Leach will be paid a commission of $3,500, which is 25% of the $14,000, assuming Mr.
Richardson is still working as of that date.
25. Denied. Marcus Brannick did not commence work until September I0, 2001,
which was after the September 7, 2001 date, and payment was not received by .rFC until October
9, 2001. Mr. Leach's commission will be paid on December 10, 2001, assuming Mr. Branrfick is
still working as of that date.
26. Denied. Mr. Bashen did not commence work until September 24, 2001, well after
the September 7, 2001 date. Further, payment was not received by YFC until October 8, 2001.
Therefore, commissions will not be due Mr. Leach until December 24, 2001, at which time he
will be paid his appropriate commission assuming Mr. Bashen is still working at that time.
27. Denied. Jason Tuomy did not commence work until October i, 2001, well after
the September 7, 2001 date. Further, no payment was received by YFC. Assuming payment is
received by January 1, 2002, and Mr. Tuomy is still working as of that date, Mr. Leach will be
paid his commission.
28. Denied.
29.
30.
See response to no. 23 above.
Denied. See response to no. 24 above.
Denied. See response to no. 25 above.
31. Denied. See response to no. 26 above.
32. Denied. See response to no. 27 above.
Respectfully submitted,
K~F. WER WOOD AIJ.~N & RAHAL, T T.p
Dated: November .. =.O/~ , 2001
'/STEPiqEN L. GROSE
I.D. # 31006
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attomeys for Plaintiff, IFC Personnel, Inc.
VERIFICATION
The undersigned, Steve Martin, General Manager of .IFC Personnel, Inc., hereby verifies
and states that:
4. He is authorized to sign this verification on behalf of JFC Personnel, Inc.;
2. The responses set forth in the foregoing Responses to Requests for Admissions
are true and correct to the best of his knowledge, information, and belief; and
3 He is aware that false statements herein are made subject to the penalties of 18
Pa.C.S. Sec. 4904, relating to unswom falsification to authorities.
Steve Martin
.CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record this date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Frank P. Clark, Esquire
Clark Law Office
3045 Market Street
Second Floor
Camp Hill, PA 17011
Dated: November ~ , 2001
KEEFER WOOD A!.T .EN & RAHAL, T.T.P
/St-epl~en L. Grose ~
CERTIFICATE OF SERVICE
I, FRANK P. CLARK, ESQUIRE, do hereby certify that I served a true and
correct copy of the foregoing Defendant's Motion in Limine upon the following below-
named parties by depositing same in the U.S. Mail, postage pre-paid, at Camp Hill,
Pennsylvania, this 25th day of July, 2002.
SERVED UPON:
Stephen L. Grose
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
Harrisburg, PA 17101
Frank P. Clark
11
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
BRIAN A. LEACH,
JFC PERSONNEL, INC. :
d/b/a JFC Personnel Agency, : Civil Action - Equity
Plaintiff :
:
v. : Civil Division
Defendant : No. 01-5209 Equity Term
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINg.
Plaintiff, JFC Personnel, Inc. ("JFC"), responds to defendant's motion in limine as
follows:
1.
2.
3.
4.
5.
6.
Admitted.
Admitted.
Admitted.
Admitted.
Admitted.
Admitted. By way of further answer, it should be noted however that JFC did
conduct informal discovery after the pre-trial conference and determined that no further fore,al
discovery between the parties was appropriate nor warranted.
7. Admitted.
8. Admitted. By way of further answer, JFC objected to the requests for admissions
as served because they were inappropriate and did not comply with the Pennsylvania Rules of
Civil Procedure. That general objection was set forth in JFC's response to the requests for
admissions as contained on the first page of Exhibit B to defendant's motion in limine.
9. It is admitted only that the request and the response is properly stated, with the
exception that the general objection, which applied to all responses, was not contained therein.
10. It is admitted only that the request and the response is properly stated, with the
exception that the general objection, which applied to all responses, was not contained therein.
11. It is admitted only that the request and the response is properly stated, with the
exception that the general objection, which applied to ail responses, was not contained therein.
12. It is admitted only that the request and the response is properly stated, with the
exception that the general objection, which applied to all responses, was not contained therein.
13. It is admitted that JFC has provided no additional infom~ation to supplement
request no. 16.
14. It is admitted only that the request and the response is properly stated, with the
exception that the general objection, which applied to ail responses, was not contained therein.
15. Denied as stated. JFC has not requested any formal discovery from Mr. Leach.
16. Denied as stated. JFC has advised Mr. Leach of an additional witness that it
intended to call after conducting its informal discovery and has provided additional
documentation to Mr. Leach regarding the Wage Payment and Collection Act claim.
17. Denied as stated. See responses above.
18. Denied. Only those specific requests for admissions that were specifically
"admitted" constitute admissions and are binding at trial. Any response where JFC stated
"denied," cannot be considered an admission.
19. Denied. The responses speak for themselves.
20. Denied. Mr. Leach is attempting to use the requests for admissions and the
responses thereto in a manner inconsistent with the Pennsylvania Rules of Civil Procedure, as
well as attempting to disguise what is in reality a motion for summary judgment as a motion in
limine. As such, it is inappropriate and should be denied.
WHEREFORE, Plaintiff requests that this Honorable Court enter an order denying
defendant's motion in limine.
Respectfully submitted,
KEEFER WOOD AT.I.~N & RAHAL, T.I.P
Dated: July ~ ,2002 By
STEPHEN L. GROSE
Attorney I.D. #31006
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, JFC Personnel, Inc.,
hereby certify that I have served the foregoing paper upon counsel of record this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
Frank P. Clark, Esquire
Clark Law Office
3045 Market Street
Second Floor
Camp Hill, PA 17011
KEEFER WOOD AIJ.g.N & RAHAL, lJ.P
Dated: July .
2002
By
StelShen L. G-rose
JFC PERSONNEL, INC.,
D/B/A JFC PERSONNEL
AGENCY,
Plaintiff
v.
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 31st day of July, 2002, upon
consideration of Plaintiff's complaint in the above-captioned
matter and of Defendant's answer and counterclaims, and following
an initial day of trial, the record shall remain open and the
proceedings will resume on Thursday, August 1, 2002, at 9:30 a.m.
It is noted that at the time of adjournment on
today's date, Plaintiff was presenting its case in chief, that
Karen Savage was being subjected to cross-examination by
Defendant's counsel, and that Plaintiff's Exhibits 1, 2, 4, 5 and
6, and Defendant's Exhibits 1, 2, 3 and 4 had been identified and
admitted. It is noted further that Plaintiff's Exhibit 3 had been
identified and withdrawn and that no other exhibits had been
identified or admitted.
By the Court,
Stephen L. Grose, Esquire
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
For the Plaintiff
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
pcb
JFC PERSONNEL, INC.,
D/B/A JFC PERSONNEL
AGENCY,
Plaintiff
v.
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 1st day of August, 2002, upon
consideration of Plaintiff's complaint in the above-captioned
matter and of the counterclaims filed by the Defendant, and
following a second day of trial and the trial having not yet been
completed, the record shall remain open and counsel are requested
to contact the Court's secretary for purposes of scheduling a
further day of trial.
It is noted that, at the time of adjournment on
today's date, the Defendant had commenced but not completed his
case in chief, and the Defendant was being subjected to direct
examination by Defendant's counsel.
It is noted further that as of the time of
adjournment on today's date Plaintiff's Exhibits 7 and 8 and
Defendant's Exhibits 5, 6, 7, 8, 9, 10 and 11 had been identified
and admitted, in addition to the exhibits which had been indicated
in the Order of Court dated July 31, 2002, as having been
identified and admitted. No other exhibits had been identified or
admitted.
Pursuant to a request of each counsel, the
stenographer is directed to transcribe and file the notes of
testimony from the proceedings on July 31, 2002, and on today's
date.
V~NVA'IASNN3c~
Stephen L. Grose, Esquire
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
For the Plaintiff
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
By the Court,
W~sley Ole~Jr~ ,' ~ .t~
pcb
JFC PERSONNEL, INC.,
D/B/A JFC PERSONNEL
AGENCY,
Plaintiff
v.
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
01-5209 EQUITY TERM
ORDER OF COURT
AbrD NOW, this 1st day of August, 2002, upon
consideration of Defendant's motion for a compulsory nonsuit, the
motion is denied without prejudice to revive the arguments made
with respect to the motion at the conclusion of the trial.
By the Court,
Stephen L. Grose, Esquire
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
For the Plaintiff
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
JlWesley Ole~r. }~J.~
pcb
JFC PERSONNEL, INC., :
D/B/A JFC PERSONNEL :
AGENCY, :
Plaintiff :
V. :
:
BRIAN A. LEACH, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 31st day of July, 2002, pursuant to an
agreement of counsel in the above-captioned matter, Plaintiff's
counts in its complaint respecting conversion and trade secrets
are deemed withdrawn.
By the Court,
Stephen L. Grose, Esquire
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
For the Plaintiff
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
J~esley Ole~ Jr.,
pcb
JFC PERSONNEL, INC.,
D/B/A JFC PERSONNEL
AGENCY,
Plaintiff
V.
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
01-5209 EQUITY TERM
IN RE: MOTION IN LIMINE
ORDER OF COURT
AND NOW, this 31st day of July,~ 2002, upon
consideration of Defendant's Motion in Limine, the motion is
denied without prejudice to Defendant's right to utilize the
information or lack thereof provided by Plaintiff in response to
requests for admissions and interrogatories during Defendant's
examination of witnesses in this case.
Stephen L. Grose, Esquire
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
For the Plaintiff
Frank P. Clark, Esquire
3045 Market Street, 2nd Floor
Camp Hill, PA 17011
For the Defendant
By the Court,
J~'Wesley OW, Jr., ~..
pcb
JFC PERSONNEL, INC.,
Plaintiff
Vo
BRIAN A. LEACH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 01-5209 EQUITY TERM
ORDER OF COURT
AND NOW, this 7t~ day of August, 2002, upon relation of Frank P. Clark, Esq.,
attorney for Defendant, that the above matter has been settled, no additional scheduling
of the nonjury trial is needed.
/'Stephen L. Grose, Esq.
415 Fallowfield Road
Suite 102
Camp Hill, PA 17011
Attorney for Plaintiff
' Frank P. Clark, Esq.
3045 Market Street
Second Floor
Camp Hill, PA 17011
Attorney for Defendant
BY THE COURT,
Wesley OieiO~., ' j. '
:rc
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JFC PERSONNEL, INC.
d/b/a JFC Personnel Agency,
Plaintiff
Defendant
Vo
BRIAN A. LEACH,
Civil Action - Equity
Civil Division
No. 01-5209 Equity Term
PRAECIPE TO SETTLE AND DISCONTINUE,
TO THE PROTHONOTARY OF SAID COURT:
Please mark the above matter, both the initial claims and the counterclaims, settled and
discontinued, with prejudice.
Attorney I.D. # 31006
Keefer Wood Allen & Rahal, IJ.p
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorneys for Plaintiff
Respectfully submitted,
FRANK p. CLARK
Clark Law Office
3045 Market Street
Second Floor
Camp Hill, PA 17011
(717) 731-8600
Attorney for Defendant
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, JFC Personnel, Inc.,
hereby certify that I have served the foregoing paper upon counsel of record this date by
depositing a true and correct copy of the same in the United States mail, first-class postage
prepaid, addressed as follows:
Frank P. Clark, Esquire
Clark Law Office
3045 Market Street
Second Floor
Camp Hill, PA 17011
KEEFER WOOD AI J.EN & RAHAL, LLP
By
~hen L. Grose
Dated: August _ q, 2002