HomeMy WebLinkAbout07-0013IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNFIELD CORPORATION,
Plaintiff,
V. NO.
ROBERT G. RINKER,
Defendant.
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 AN ATTORNEY AND
FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO
SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED
AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY
CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED
BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS
IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNFIELD CORPORATION,
Plaintiff,
V. NO. 01 - Q
ROBERT G. RINKER,
Defendant.
COMPLAINT
Ls z L
1. Plaintiff Pennfield Corporation ("Pennfield") is a Pennsylvania corporation, with
a principal place of business at 711 Rohrerstown Road, Lancaster, Pennsylvania 17604.
2. Defendant Robert G. Rinker ("Rinker") is an adult individual and resident of the
State of Maryland with a principal address at 13606 Jenny Lane, Little Orleans, Maryland 21766.
3. Personal jurisdiction exists in this district because Rinker has transacted business
in this district and has purposefully availed himself of the privileges of doing business in this
district. Moreover, venue is proper in this district because Rinker has transacted business in this
district, and the transactions and occurrences giving rise to this dispute occurred within this
district.
STATEMENT OF OPERATIVE FACTS
4. Pennfield is a leading Pennsylvania agricultural business serving customers in the
Mid-Atlantic and Northeast Regions, including Pennsylvania and Maryland. Among other
services, Pennfield sells and provides animal nutrition products and feed testing for its
customers.
5. On or about July 14, 2003, Pennfield hired Rinker as Western Region Dairy Feed
Area Manager. While employed at Pennfield, Rinker had daily access to confidential customer
78641
information including: client lists and contact information; price structures; profit margins;
overhead costs; marketing strategy; and feed formulas for Pennfield customers.
6. As a condition of his employment, Rinker knowingly and voluntarily signed a
Noncompetition and Confidentiality Agreement ("Agreement") with Pennfield. A true and
correct copy of the Agreement is attached hereto and made a part hereof as Exhibit A.
7. Pursuant to Paragraph 3 of the Agreement, Rinker voluntarily agreed to not
directly or indirectly compete with Pennfield for a period of twelve (12) months after Rinker's
employment with Pennfield ended. Specifically, Rinker agreed to the following:
Covenant Not to Compete. During employment with Pennfield and for 12
months after the end of such employment, Employee shall not; either directly
or indirectly through another employer or another business colleague; contact,
solicit sales from, attempt in any manner to solicit sales from, or sell to any of
Pennfield's customers. The term "Pennfield's customers" shall include any
person or entity to whom Pennfield (or its subsidiaries or affiliates) has
actually sold, or made a proposal to sell, any services or products within 12
months before the end of Employee's employment with Pennfield, without any
geographic limitation. Also during Employee's employment with Pennfield
and for 12 months after the end of such employment, Employee shall not
directly or indirectly employ any person who was an employee of Pennfield, its
subsidiaries or affiliates, during Employee's employment, or entice away or
attempt to entice away from employment by Pennfield, its subsidiaries or
affiliates, any such employee. Employee's obligations contained in this
Covenant Not to Compete are in addition to Employee's obligations contained
in Pennfield's Policy No. 4502 governing Conflicts of Interest.
8. The Agreement also contained a confidentiality provision by which Rinker agreed
not to disclose "confidential information" or use such information for his benefit or the benefit of
others except to the extent necessary to function as a Pennfield employee. Pursuant to Paragraph
4a, the Agreement defined "confidential information" as follows:
For the purposes of this agreement, confidential information shall mean any
information or knowledge which relates in any manner to the existing or
proposed business of Pennfield, its subsidiaries or affiliates, and which is in the
possession of Pennfield, its subsidiary or affiliates during Employee's
employment, whether created by Employee or others, and which relates to any
78641 _ 2 _
of the following: products; product composition (including feed formulas);
equipment; manufacturing (including manufacturing processes); financial,
marketing or sales methods; customers or potential customers; supplier
information; contracts; business plans; pricing; computer programs (including
Dairy Computer Total Ration software); policies and procedures of Pennfield;
and related documentation and information. "Confidential information" shall
also include any other know-how or trade secrets of Pennfield, and other
information which Pennfield advises Employee is confidential or which
Employee has reason to know is confidential."
9. Pursuant to Paragraph 7 of the Agreement, Rinker acknowledged that any breach
of the Agreement will cause Pennfield "immediate and irreparable harm."
10. Mr. Rinker's employment with Pennfield ended on September 20, 2006.
11. By correspondence dated September 21, 2006, ("Reminder Letter") Pennfield
reminded Rinker of his obligations under the Agreement and enclosed a copy of the Agreement.
A copy of the September 21, 2006, correspondence is attached hereto and made a part hereof as
Exhibit B.
12. Notwithstanding the Agreement and the Reminder Letter, Rinker is willfully and
deliberately competing against Pennfield in violation of the Agreement. Specifically, Rinker has
violated the Agreement by directly or indirectly: (a) competing with Pennfield; (b) steering
Pennfield customers away from Pennfield and to other competing firms; and (c) using and
disclosing Pennfield's confidential information in order to secure contracts with Pennfield's
competing firms.
13. By correspondence dated October 16, 2006, Counsel for Pennfield sent Mr.
Rinker a letter advising him of the Agreement and requesting that he stop competing against
Pennfield and soliciting Pennnfield's customers. A true and correct copy of the October 16, 2006,
letter is attached hereto and made a part hereof as Exhibit C.
78641 _ 3 _
14. Rinker, however, has refused to stop competing. Upon information and belief,
Rinker has contacted Pennfield customers and requested that they not report his competition to
Pennfield.
15. By correspondence dated November 21, 2006, Counsel for Pennfield again asked
that Mr. Rinker stop competing and to turn over proprietary information and trade secrets
belonging to Pennfield. Mr. Rinker has refused to stop competing or return any documents to
Pennfield. A true and correct copy of the November 21, 2006, letter is attached hereto and made
a part hereof as Exhibit D.
COUNT I - BREACH OF CONTRACT
16. Pennfield incorporates the foregoing paragraphs as though fully set forth herein.
17. Based upon the foregoing allegations, Rinker has materially breached the
Agreement by directly or indirectly competing against Pennfield and disclosing confidential
customer information.
18. Pennfield has no adequate remedy at law since damages will be inadequate and
very difficult to ascertain. As a result, Pennfield will be irreparably harmed if Rinker is
permitted to continue violating the Agreement by using Pennfield's confidential information to
blatantly compete with Pennfield by soliciting its customers and steering them away from
Pennfield.
WHEREFORE, Plaintiff, Pennfield Corporation, respectfully requests that the Court
enter an Order granting the following:
(a) an injunction against Rinker prohibiting him from disclosing any
confidential information or trade secrets to any person or business;
(b) an injunction against Rinker prohibiting him from soliciting business from
any prior customer of Pennfield for a period of twelve (12) months or until
such time the Court feels is just;
78641 _ 4 _
(c) an injunction requiring Rinker to return all documents or other materials
containing confidential information or trade secrets of Pennfield, including
purging any such information or trade secrets from any computer either
owned by him or to which he has access;
(d) an injunction against Rinker prohibiting him from using any confidential
information or trade secrets he has learned from Pennfield to solicit
customers;
(e) an award of such damages and losses as Pennfield may have suffered; and
(f) such other relief as is permitted under the facts and law.
COUNT II - TORTIOUS INTERFERENCE WITH
PROSPECTIVE CONTRACTUAL RELATIONS
19. Pennfield incorporates the foregoing paragraphs as though fully set forth herein.
20. Upon information and belief, Rinker has purposefully and improperly, without
privilege or justification, used Pennfield's confidential information to steer customers away from
Pennfield.
21. Rinker's interference with Pennfield's prospective contractual relations was/is
intentional and calculated to cause damage to Pennfield and its business.
22. Rinker's improper interference with Pennfield's contractual relations has caused,
and continues to cause, Pennfield to suffer damages in an amount presently unknown but
believed to exceed the arbitration limits in this County.
WHEREFORE, the Plaintiff, Pennfield Corporation, respectfully requests injunctive
relief, as set forth above, as well as a judgment in its favor and against Rinker, in an amount to
be determined at trial.
COUNT III - MISAPPROPRIATION OF TRADE SECRETS
12 Pa. C.S.A. 5301, et seq.
23. Pennfield incorporates the foregoing paragraphs as though fully set forth herein.
78641 -5-
24. Pennfield's client lists and contact information, price structures, profit margins,
overhead costs, marketing strategy, customer pricing information, and information relating to
feed formulas ("Trade Secrets") is confidential and proprietary information.
25. Pennfield's Trade Secrets are of great value to it, and Pennfield has taken efforts
to guard against the disclosure of its Trade Secrets by: (a) not disclosing such information; and
(b) having its employees sign the Agreement in which they agree not to disclose any confidential
information, including "pricing," to any person or entity except to the extent necessary to
function as an employee of Pennfield.
26. Pennfield has the exclusive right to use its confidential Trade Secrets.
27. Upon information and belief, Rinker has acted as an independent contractor
working with certain competing firms and, by knowing and using to his advantage Pennfield's
Trade Secrets, Rinker has: (a) improperly competed against Pennfield; and (b) steered sales away
from Pennfield and to competing firms.
28. Rinker has misappropriated Pennfield's Trade Secrets by intentionally, willfully
and maliciously using them to his own advantage to directly compete against Pennfield.
29. Pursuant to the Uniform Trade Secrets Act ("Act"), 12 Pa.C.S.A. §5301 et seq.,
Rinker is liable for all damages arising from his misappropriation of the Trade Secrets, including,
but not limited to, exemplary damages and attorney's fees.
WHEREFORE, the Plaintiff, Pennfield Corporation, respectfully requests injunctive
relief, as set forth above, as well as a judgment in its favor and against Rinker, in an amount to
be determined at trial, plus exemplary damages and attorney's fees for his violation of the Act.
COUNT IV - UNFAIR COMPETITION
30. Pennfield incorporates the foregoing paragraphs as though fully set forth herein.
78641 -6-
31. The foregoing conduct of Rinker constitutes an unfair method of competition.
32. As a consequence of the foregoing, Pennfield has suffered and will continue to
suffer irreparable loss.
WHEREFORE, the Plaintiff, Pennfield Corporation, respectfully requests injunctive
relief, as set forth above, as well as a judgment in its favor and against Rinker, in an amount to
be determined at trial.
ALMY & GRIMM LLP
Date: By:
Nod 63341
Jo . L ler, l squir(
Attorn o. 87415
24 North Lime Street
Lancaster, PA 17602
(717) 392-1100
Counsel for Plaintiff,
Pennfield Corporation
78641 -7-
WRIFICATION
I hereby verify that I am Carl Dem Sales & Marketing Director, AFTECH: Division of
Pennfield Corporation; that as such. I am authorized to make this verification; and that the
information set forth in the foregoing document is true and correct to the best of my knowledge,
information and belief. I understand that any false statements contained herein are subject to the
penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities.
PENNFIELD CORPORATION
Dated :12 By: //?
Carl I)ern
RECEIVED
JUN 20 2003
I
R. Gregory Rinker
NONCOMPE I I I ON AND CONFIDENTIALITY AGREEMENT
Agricultural Products
The undersigned employee, herein called "Employee," and Pennfield Corporation, 711
Rohrerstown Road, Lancaster, PA 17604, herein called "Pennfield," both acknowledge and agree to the
following :
1. Background. Employee is and shall continue to be employed by Pennfield in a position of
trust and confidence (the employment relationship shall continue "at will"). It is expected that Employee
will have access to proprietary and confidential information belonging to Pennfield. In addition, an
important part of Employee's duties is the development and maintenance of good will for the benefit of
Pennfield through personal contact with others having business relationships with Pennfield. This good will
is a proprietary asset of Pennfield.
2. Consideration. In exchange for the terms Employee agrees to herein, Pennfield shall
employ Employee in an "at will" relationship.
"
3. Covenant Not to Compete. During employment with Pennfleld and for 12 months after 4u?_-"
the end of such employment, Employee shall not; either directly or indirectly through another employer or
another business colleague; contact, solicit sales from, attempt in any manner to solicit sales from, or sell
to any of Pennfield's customers. The term "Pennfield's customers" shall include any person or entity to
whom Pennfield (or its subsidiaries or affiliates) has actually sold, or made a proposal to sell, any services
or products within 12 months before the end of Employee's employment with Pennfiel-d,-without any
geographic limitation. Also during Employee's employment with Pennfield and for 12 months after the end
of such employment, Employee shall not directly or indirectly employ any person who was an employee of
Pennfield, its subsidiaries or affiliates, during Employee's employment, or entice away or attempt to entice
away from employment by Pennfield, its subsidiaries or affiliates, any such employee. Employee's
obligations contained in this Covenant Not to Compete are in addition to Employee's obligations contained
in Pennfield's Policy No. 4502 governing Conflicts of Interest.
4. Confidential Information.
a. For purposes of this agreement, "confidential information" shall mean any
information or knowledge which relates in any manner to the existing or proposed business of Pennfield, its
subsidiaries or affiliates, and which is in the possession of Pennfield, its subsidiary or affiliates during
Employee's employment, whether created by Employee or others, and which relates to any of the
following: products; product composition (including feed formulas); equipment; manufacturing (including
manufacturing processes); financial, marketing or sales methods; customers or potential customers;
supplier information; contracts; business plans; pricing; computer programs (including Dairy Computer
Total Ration software); policies and procedures of Pennfield; and related documentation and information.
"Confidential information" shall also include any other know-how or trade secrets of Pennfield, and other
information which Pennfield advises Employee is confidential or which Employee has reason to know is
confidential.
b. The term "confidential Information" shall not include information which Employee
can prove to be generally known in the industry or to the public.
C. Employee acknowledges that confidential information has been and will continue
to be of central importance to Pennfield, and that disclosure of it to or its use by others could cause
substantial loss to Pennfield.
d. Employee shall not, during Employee's employment by Pennfield or at any time
thereafter, use for Employee's personal benefit or for the benefit of others, or disclose to others, any
confidential information, except to the extent necessary to function as an employee of Pennfield.
5. Return of Documen . Before the end of employment with Pennfield, Employee shall turn
over to Pennfield all originals and copies of notes, memoranda, notebooks, drawings, and all other tangible
property made by, compiled by, or made available to Employee in the course of Employee's employment,
whether or not they contain confidential information, it being agreed that the same and all information
contained therein are at all times the property of Pennfield.
61 Employee Acknowledgments.
a. Employee acknowledges that, prior to execution of this agreement, Employee has
been provided adequate opportunity to review this agreement with legal counsel of Employee's choice.
b. Employee acknowledges that the restrictions contained in this agreement are
reasonable and necessary to protect the legitimate business interests of Pennfield.
7. Remedies for Breach.
a. General Remedies. Employee recognizes that damages, in the event of a breach
by Employee of the terms contained in this agreement, might be difficult, if not impossible, to ascertain
and that breach of any of such terms will cause immediate and irreparable hart to Pennfield. If Employee
violates any of the terms contained in this agreement, in addition to and without limiting any other remedy
or right it may have, Pennfield shall have the right to an injunction or other equitable relief from any court
of competent jurisdiction, enjoining any such breach; and Employee waives any and all defenses Employee
may have based on lack of jurisdiction or competence of the court to grant such injunction or other
equitable relief.
b. Tolling Provision. If Employee violates any of the terms in this agreement, the 12-
month time period specified for the Employee's covenant not to compete shall be tolled during the period
of Employee's violation. In such event, Employee's covenant not to compete shall extend for 12 months
after the time when Employee ceases violating the agreement.
8. Miscellaneous.
a. Severability. The terms of this agreement shall be severable; and, if any tern is
held invalid for any reason, such term shall be adjusted to the extent necessary to cure such invalidity, and
all other terms shall remain valid and enforceable.
b. Waivers. The waiver by Pennfield of a breach by Employee of any provision of this
agreement shall not operate or be construed as a waiver of any subsequent breach.
C. Entire reement This agreement represents the entire agreement concerning
the subject matters covered by this agreement, and this agreement may not be modified except by a
writing signed by both parties.
d. Binding Effect. Employee agrees that this agreement shall be binding upon
Employee's heirs, executors, administrators and assigns and any other legal representative.
e. Governing Law. This agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
f. Assignment. This agreement may be assigned by Pennfield in the event of the
merger or consolidation of Pennfield.
IN WITNESS WHEREOF, the parties have executed this agreement below:
PENNFIELD CORPOI nON
By: 15- ..3 0
Corporate Officer Da
EMPLOYEE ." %11 r _ / & // S
lJ. .?i i .
ADDENDUM TO NONCOMPETMON AND CONFIDENTCALnY AGREEMENT
Notwithstanding the covenants or restrictions contained in the Noncompetition and Confidentiality
Agreement ("Agreement") between Penn leld and Employea, the parties hereby agree that said
Agreement shall not be construed to prohibit or limit Employee's right to contact, solicit sales from,
attempt in any manner to solicit sales from, or sell to the following customers at any time following his or
her termination from employment with Pennfield; provided, this exception to the covenants and
restrictions in the Agreement shall be strictly limited to the customers and products listed below at the
location(s) listed (if any):
Customer Na s Locations of Customer Facift Product(s)
1.
2.
3.
4.
5.
6. _
7.
8.
(Lust others on attached pages. Attactmd pages are invalid unless signed and dated by each
partV.)
The purpose of this Addendum is to preserve Employee's right after leaving Pennfield to continue
transacting the same type and level of business that he or she transacted with any customer immediately
before becoming employed by Pennfield. This Addendum, if signed and dated by both parties, shall be
deemed a modification of the Noncompetition and Confidentiality Agreement, but shall not otherwise affect
the enforceability of that Agreement except to the limited extent provided herein.
PENNFIELD CORPORA770M
By: CZ 4
Corporate officer
EMPLOYEE
6"C ? ? C-t- 14L
Emglbyee
Da e
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ate
pennfield
orporation
711 Rohrerstown Road, P.O. Box 4366
Lancaster, PA 17604
717-299-2561
September 21, 2006
Mr. Robert Greg Rinker
13606 Jenny Lane
Little Orleans, MD 21766
Re: Noncompetition and Confidentiality Agreement
Dear Greg:
As you may recall, you signed a "Noncompetition and Confidentiality Agreement" when you
were hired by Pennfield in which you agreed to certain restrictions on future employment.
Specifically, in paragraph 3 of the Agreement (copy enclosed), you agreed that for twelve
(12)--months after-the-end-of-your-employmentwith -Pennfield-you-would-not -`-'either-directly--
or indirectly through another employer... contact, solicit sates from, attempt in any manner to
solicit sales from, or sell to any of Pennfietd's customers."
We call your attention to paragraph 7(a) of the Agreement which grants Pennfield the right to
damages and any other legal and equitable remedies in the event the Agreement is breached,
including a court injunction prohibiting any further breach. In addition, paragraph 7(b)
provides that any period during which a former employee is in breach shalt not count toward
the twelve (12) month non-competition period.
Pennfietd's customer base is of critical importance to the Company, and we have instructed
our legal counsel to take any necessary legal action to ensure that the Agreement is enforced
against former employees who violate its terms. In the event you are considering employment
which may breach the terms of the Agreement, we strongly suggest that you immediately
review the Agreement with your prospective employer(s) and your personal attorney.
This letter is merely intended to remind you of your responsibilities under the Agreement and
to prevent any unintentional breach. If you have any questions regarding this letter or the
enclosed Agreement, please do not hesitate to call me directly.
Very truly yours,
6,? ? v b)+
KEGEL KELIN ALMY & GRIMM LLP
24 North Lime Street Lancaster, PA 17602 TEL 717.392.1100
ERIC N. ATHEY
October 16, 2006
Via Certified Mail and U.S. Mail
Mr. Robert G. Rinker
13606 Jenny Lane
Little Orleans, MD 21766
Re: Pennfield Corporation v. Rinker
Dear Mr. Rinker:
FAX 717.392.4385 www.kkaglaw.com
E-M.IJL:athey@kkaglaw.com
This Firm represents Pennfield Corporation. It is our understanding that Sandy Peck sent
you a letter dated September 21, 2006 as a reminder of your obligations under the Non-
competition and Confidentiality Agreement which you signed when you were hired by
Pennfield. Notwithstanding your receipt of Ms. Peck's reminder letter, it is our understanding
that you are now engaging in activities which are in clear violation of your Agreement.
Specifically, Pennfield recently learned that you have contacted and solicited two of its
customers - Martin's Elevator and Farmers Union. Significantly, you worked with both of these
customers while you were employed by Pennfield.
As Ms. Peck pointed out in her letter to. you, paragraph 7.a. of your Agreement provides
that you will be liable for damages in the event you breach the Agreement. The Agreement
further gives Pennfield the right to injunctive relief.
This letter shall serve as Pennfield's formal demand that you immediately cease any
activities that are in breach of your Agreement, including your contacting and soliciting of
Pennfield customers, including Martin's Elevator and Farmers Union. Failure to do so may
result in legal action against you. For this reason, we urge that you immediately discuss this
letter with vour attorney and your insurer. We also demand that you provide to Ms. Peck,
written verification assuring Pennfield that you have ceased all activities that are in breach of the
Agreement and that you will refrain from such activities for the remainder of your 12-month
non-compete period.
k - -- ~ Mr. Robert G. Rinker
October 16, 2006
Page 2
If you have any questions regarding this letter, please contact me (or have your attorney
contact me) at the number given above. If we do not heal from you by Thursday, October 26,
2006, we will assume that you have chosen to continue to breach the Agreement and we will
respond accordingly on behalf of Pennfield.
truly yours,
ric N. they
ENA/clc:78132
cc: Sandy Peck
Fxk?bt-? -D
KEGEL KELIN ALMY & GRIMM LLP
24 North Lime Street Lancaster, PA 17602 TEL 717.392.1100
ERIC N. ATHEY
November 21, 2006
VIA CERTIFIED MAIL AND REGULAR FIRST CLASS MAIL
Mr. Robert G. Rinker
13606 Jenny Lane
Little Orleans, MD 21766
Re: Pennfield Corporation v. Rinker
Dear Mr. Rinker:
E•M.vL: athey@ kkaglaw. com
Pennfield was disappointed that you have apparently have chosen to ignore its prior
correspondence regarding your non-compete agreement. The company has now sustained
damages as a result of your breach of the agreement and misappropriation of the company's
trade secrets. We have attached a copy of a civil complaint which we intend to file against you
unless you take the necessary steps to avert litigation. Specifically, we demand that you provide
the following no later than Thursday, November 30, 2006:
1. A complete list of Pennfield customers that you have contacted, directly or
indirectly, since your last day of employment with Pennfield - including the date and purpose of
contact;
2. A complete list of Pennfield customers that you have obtained business from, or
assisted others in obtaining business from - including date(s) and amounts of all invoices issued;
3. Any Pennfield property and trade secrets in your possession, including customer
lists and related information, etc. and a listing of any individuals to whom you have disclosed
such information since your last day of employment with Pennfield; and
4. A sworn statement from you verifying that the documents described above are
complete and accurate and assuring that you will refrain from any further breach of your
Agreement.
Please be advised that this information will be used for purposes of determining the
extent of damages that Pennfield has sustained as a result of your actions. The Company needs
this information in order to determine whether it is possible to settle this matter without
litigation.
FAX 717.392.4385 www.kkaglaw.com
Mr. Robert G. Rinker
November 21, 2006
Page 2
If you have any questions regarding this letter, please contact me at the number given
above. If we do not hear from you by November 30, 2006, we will assume that you have chosen
to continue to breach the Agreement and we will respond accordingly on behalf of Pennfield.
V y yours,
Eric N. Athey
ENA/clc:78853
Enclosure
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
PgN ?,)FL F-L P 'COR PO KA-n o)
(Plaintiff)
VS.
(Defendant)
No. 07-1-, Term
State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.): r
2. Identify counsel who will argue cases:
(a) for plaintiff: JIL
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(b) for defendant: II
Jo?o?h A -?ac? ?/Sv
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3. I will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court Date:
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Date: - 30 - 0 /
name
Attorney for
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IN THE COURT OF COMMON PLEAS OF THE 8TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
PENNFIELD CORPORATION,
Plaintiff,
No. 07 -13
V.
ROBERT G. RINKER,
Defendant
NOTICE TO PLEAD
To: Pennfield Corporation c/o Eric N. Athey, Esq., Kegel Kelin Almy
& Grimm LLP, 24 North Lime St., Lancaster, PA 17602
You are hereby notified to file a written response to the enclosed preliminary
objections to the complaint within twenty (20) days from service hereof, or a
judgment may be entered against you.
gJose A: Macaluso ?
y for Defend ant
e Court I.D.# 38262
ox 83
Orrstown, PA 17244
(717) 532-4832
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
PENNFIELD CORPORATION,
Plaintiff,
No. 07 - 13
V.
ROBERT G. RINKER,
Defendant
DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT
Defendant, Robert G. Rinker, by and through his attorney, Joseph A. Macaluso,
hereby files the following preliminary objections to the complaint of defendant,
Pennfield Corporation, as follows:
PRELIMINARY OBJECTION #1
LEGAL INSUFFICIENCY - PA. R.CIV. P. 1028(a)(4)
(DEMURRER)
1. Plaintiff prepared the Noncompetition and Confidentiality Agreement (the
"Agreement"), a copy whereof is attached to the complaint as Exhibit A.
2. Defendant's employment with plaintiff was "at will", as set forth in Paragraph 2 of
the Agreement.
3. Defendant was employed as an Area Manager whose job was to sell feed to
farmers, as stated in defendant's supporting affidavit attached hereto as Exhibit A.
4. Paragraph 3 of the Agreement states that the non-competition Agreement applies
to defendant "without any geographic limitation." (Emphasis added)
5. At all times relevant to this action, defendant has been a resident of Maryland,
and plaintiff has maintained its main offices in Lancaster County, Pennsylvania.
6. "In order for a 'non-competition' covenant to be enforceable, it must relate to a
contract for employment, be supported by adequate consideration and be limited in
both time and territory." Insulation Corp. of America v. Brobston, 446 Pa. Super. 520,
528 (1995).
7. Paragraph 3 of the Agreement is not limited in territory.
8. As such, application of Paragraph 3 of the Agreement "without any geographic
limitation" constitutes an undue hardship upon defendant.
9. It is not reasonably necessary for plaintiffs protection for Paragraph 3 of the
Agreement to apply "without any geographic limitation."
10. The Agreement is unenforceable because it is not "limited in ... territory."
11. Therefore, plaintiff has no cause of action for violation of the Agreement.
WHEREFORE, defendant respectfully requests that the Court enter an Order
dismissing the plaintiffs complaint respecting the Agreement.
PRELIMINARY OBJECTION #2
LEGAL INSUFFICIENCY - PA. R.CIV. P. 1028(a)(4)
(DEMURRER)
12. Defendant repeats the allegations contained in Paragraphs 1 through 11
inclusive, above, of the preliminary objections as though set forth in extenso.
13. "it bears noting that there is a significant factual distinction between the
hardship imposed by the enforcement of a restrictive covenant on an employee who
voluntarily leaves his employer and that imposed upon an employee who is terminated
for failing to do his job. Insulation Corp. of America v. Brobston, 446 Pa. Super. 520,
533-534 (1995).
14. Plaintiff alleges in Paragraph 10 of the complaint that defendant's employment
ended, but plaintiff does not allege how his employment ended: the termination notice
which plaintiff gave defendant states he was terminated because of "not meeting
required sales goals" (see defendant's supporting affidavit and termination notice
attached hereto).
15. "Where an employee is terminated by his employer on the grounds that he has
failed to promote the employer's legitimate business interests, it clearly suggests an
implicit decision on the part of the employer that its business interests are best
promoted without the employee in its service. The employer who fires an employee for
failing to perform in a manner that promotes the employer's business interests deems
the employee worthless. Once such a determination is made by the employer, the need
to protect itself from the former employee is diminished by the fact that the employee's
worth to the corporation is presumably insignificant." Insulation Corp. of America v.
Brobston, 446 Pa. Super. 520, 532 (1995).
16. It is unreasonable as a matter of law to permit plaintiff to retain unfettered
control over defendant, whom plaintiff has effectively discarded.
17. Therefore, plaintiff has no cause of action for enforcement of the Agreement
under the factual circumstances of the termination of defendant's employment.
WHEREFORE, defendant respectfully requests that the Court enter an Order
dismissing the plaintiffs complaint.
PRELIMINARY OBJECTION #3
LEGAL INSUFFICIENCY - PA. R.CIV. P. 1028(a)(4)
(DEMURRER)
18. Defendant repeats the allegations contained in Paragraphs 1 through 17
inclusive, above, of the preliminary objections as though set forth in extenso.
19. Paragraph 3 of the Agreement states that defendant "shall not; either directly or
indirectly through another employer or another business colleague; contact ...
any of Pennfield's customers." (Emphasis added)
20. Defendant states in his affidavit (Exhibit A hereto) that he has been engaged in
business as a consultant to farmers relative to nutrition and agricultural practices since
he was dismissed by plaintiff, and that he has been acquainted with these farmers prior
to his employment with plaintiff, and that these farmers contacted him.
21. Moreover, defendant was not employed by plaintiff as a nutritional and
agricultural consultant, but as a salesman.
22. The restriction contained in Paragraph 3 of the Agreement that defendant shall
not contact customers of plaintiff under the circumstances constitutes an undue
hardship upon defendant.
23. It is not reasonably necessary for plaintiffs protection that defendant be
restricted from contact with plaintiffs customers to serve them as a nutritional and
agricultural consultant.
24. Paragraph 3 of the Agreement is unenforceable because it is overly broad and
unreasonable as applied to defendant.
25. Therefore, plaintiff has no cause of action for violation of the Agreement.
WHEREFORE, defendant respectfully requests that the Court enter an Order
dismissing the plaintiffs complaint.
PRELIMINARY OBJECTION #4
INSUFFICIENT SPECIFICITY - PA. R.CIV. P. 1028(a)(3)
26. Defendant repeats the allegations contained in Paragraphs 1 through 25
inclusive, above, of the preliminary objections as though set forth in extenso.
27. Paragraph 3 of the Agreement states that defendant "shall not; either directly or
indirectly through another employer or another business colleague; contact, solicit
sales from, attempt in any manner to solicit sales from, or sell to any Pennfield's
customers."
28. Plaintiff alleges in Paragraph 12 of the complaint that defendant violated the
Agreement by "competing with Pennfield"; however, plaintiff does not :
a) specify how defendant competed with plaintiff so as to violate Paragraph 3 of
the Agreement;
b) specify whether defendant solicited sales or attempted to solicit sales from
plaintiffs customers;
c) identify the customers of plaintiff with whom defendant has allegedly violated
Paragraph 3 of the Agreement.
29. Plaintiff further alleges in Paragraph 12 of the complaint that defendant violated
the Agreement by "steering Pennfield customers away from Pennfield and to other
competing firms", which is an admission by plaintiff that defendant himself did not make
sales to these customers, however, plaintiff does not:
a) specify the customers of plaintiff whom defendant allegedly "steered away";
b) specify how defendant allegedly did this;
c) specify to what "competing firms" defendant allegedly directed them.
30. Plaintiff further alleges in Paragraph 12 of the complaint that defendant violated
the Agreement by "using and disclosing Pennfield confidential information in order to
secure contracts", however, plaintiff does not:
a) specify what "confidential information" is involved;
b) specify how defendant has allegedly used any confidential information.
31. The facts alleged in Paragraph 12 of the complaint are not sufficiently specific
so as to enable defendant to prepare his defense.
32. Defendant states in his affidavit attached hereto as Exhibit A that he has not
engaged in any sales of products that plaintiff sells, or in any sales of products of any
kind whatsoever, since he was dismissed by plaintiff.
33. Moreover, defendant states in his affidavit attached hereto as Exhibit A that he
has been engaged in business as a consultant to farmers and that he did not make
solicitations to them to buy products from him.
34. Under the circumstances, defendant reasonably believes, and therefore avers,
that plaintiff has not provided specificity of facts to support the allegations of Paragraph
12 of the complaint because no such facts exist.
WHEREFORE, defendant respectfully requests that the Court enter an Order
dismissing the plaintiffs complaint.
Ily submitted,
h A. Madaluso
for Defendant
Court I.D.# 38262
P.O. Box 83
Orrstown, PA 17244
(717) 532-4832
Date: January30 2007
CERTIFICATE OF SERVICE
I hereby certify that on the '?4 y of January, 2007, 1 caused to be served a
true and correct copy of the defendant's preliminary objections to the complaint, upon
the following individual by first class mail postage prepaid:
Eric N. Athey, Esq.
Kegel Kelin Almy & Grimm LLP
24 North Lime St.
Lancaster, PA 17602
I further certify that the statements made herein are true and correct, and I
understand that if any false statements were made herein, the same would be
subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn
falsification to authorities.
4-h
Dated: January3lo, 2007
FAX NO. :
Sep. 21 2696 06:01AM P2
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT 40
OF PENNSYLVANIA - CUMBERLAND COUNTY
PENNFIELD CORPORATION,
Plaintiff,
No. 07 -13
V.
ROBERT G. RINKER,
Defendant
AFFIDAVIT
The undersigned, Robert G. Rinker, resicling at 13606 Jenny Lane, Little Orleans,
MD 21766, being of full age and sound mind, and having affirmed or been duly swum
according to law, state to the best of my knowledge, inloffnadon and belief as follows:
1. I am the defendant in this c and am familiar with the facts. 0
2. Plaintiff employed me as an Area Manager to sell feed to farnwrs from July 14,
2003, until September 20, 2006. A copy of the fetter dated June 10, 2003, from plaintiff
to me offering the position to me and sWng "You will begin employment on July 14,
2003", and stating the conditions of my employment, is attached hereto.
3. Prior to commencement of my employment with plaintiff, I was required to sign
and I did sign on June 16, 2003, a Noncompetition and Confidentiality Agreement, a
copy when W is attached to the complaint as Exhibit A.
4. The Noneompeddon and Confidentiality Agreemwd was not referred to by
plaintiff as a condition of my employment in its letter offering me the position.
5. On September 20, 2006, plaintiff dismissed me because of "not meeting required
sales goals", though plaintiff had not inf+orrned me of sales goals or warned me about
this. A copy of the termination notice dated September 20, 2006, is attached hereto.
•
A
FROM :
FAX NO. : Sep. 21 2006 06:01AM P3
6. 1 have been a resident of Maryland at all times relevant to this case.
7. Since the time plaintiff disrr**W me, I have been engaged in business as a
consultant to farmers regarding nutrition and agricultural practlces.
$. 1 am pursuing this livelihood to support myself, my wile, and my children who
reside with me.
9. 1 was acquainted with the farmers whom I serve as consultant prior to my
employment with plaintiff, and I did not become acquainted with these farmers through
plaintiff.
10. These fanners contacbsd me to consult with them.
11. 1 was never employed by plaintiff as a consultant.
12. At no time since plaintiff dismissed me have I engaged In any sales of produc %
that plaintiff sells, or in any sales of products of any kind whatsoever.
rt G.rC 1 er
or affirmed med before me this
ay of January, 2007
-,Y.-4-geg?
'Notary Pu c
Anita M. McKee
NOTARY PUBLIC
Covssi moires 1/27/10
0
?1 V25I2N19? 17; 21
4---
3014 52323 GREG RINKER PAGE 01
June 10, 20M
W. R Oreoow R1rdW
mm knny Lane
Lfte Ode", MD 21766
Dear Qw.
This letter a to formally offer you the poskian of Area MancKw in our ViW tw'n Region,
reporting to Snx* Woavw. This offer Is contingent upon your passim a pre-empl%mient drug
test and completing the enclosed non-compeWconficlentiallty agreement. The following
pravbiorrs are considered to be a part of your employment at Perlnfield as well.
1. You will bog *% w"p Wyrmw* on July 14.2001 C,onwtiencing with your stmt of ernployn%wit,
you will receive a u*Wy salary of $770 per week, ($40.004 onmxlk'b4.
2. You will receive a guaranteed commission of !1,92,3 per period until the end of 2004. This
corrmssim is based on the Western Region Area Salon Manager Progrcrn (enclosed),
which Includes your individual gross margin, plus orwbcO pment of gross margin
genwaked by the following people reporting to you on a period bask- Brandon Boyer,
Nome Cosner, and Ceorc e, DeMen &hot). If you awcoad the guarantee arnount of !1,923
at any time, 5wu will receive the calculated bonus for that period
3. You will be eligible to enroll in the comPanyrs group insurance plan after 30 days of
empkwnwnt. Your cost per week for this coverage is dependent upon your plan choice.
4. You will be elute to po dkipate in the Ruraluiimer Car Program
5. You will he supplied with standard equipment (four, tell phone, kaptop, printer).
If you agree that this letter sets forth our understanding, please sign the enclosed copy and
retum it to me. This offer is valid for ten (10) days from the date of this letter.
I am plowed to offer this position to you. We belWo that your qualifications and enthwianm
will rontrtute greatly to our business and that you will be a valuable addition to our Dairy
Salm Team.
sincerely,
Donald
Director, Hurnan Resouram
Enclbsur+es
. Non-cretalCcnfidwWkV AgnterrWR
r. A. Bowman
B. Weaver
a.Williamson
..-------•-- --------- ---•- --------------- -----.
I hereby am wt empko m,,e t based on the Conditions dwar*ed in this offer letter.
Signed _ OC" -
-,1:'29/2%=`7 97; 40 3014792323 GREG RINKER PAGE e01
M GRE0 RINKER
FROM, $RUCE WEAVER
SUBJECT: TERMINATION
DATE: September 20, 2006
rr.-.
i
ASINL
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{i
Thi4 letter is to infbrm you that yom employment is tamInat3e4 effbcrive September 2o, 2006. Tliis
terin ination is due to pecformar= in not meeting, required sales goWs- Y7ouwiiiU nacr?civc .f'o,Yuir weeLe
severance pay in lieu of any vacation of holiday pay, ending on October 2t, 2006. This will be paid
at your base rate of $ 770 per week.
Human Resources will mail you information related to twzaefxts in ti;e next few days. Your group
health and life insura:ce bmef'its will end on Septetrtbet 20, 2006, your last clay of employment.
Lee air, you have cerr rigW io elect the continuation of health insurance benefits (COBRA)
by making timely notification.
,Please atrange fox the return of any company property in your possession-
forward any Runzhrimez information to Skmtt Naylaa for processinng.
If you move, pteasc provide w with a c ur new addxws so that we may forty zd vAthholding tax or
m additional per,i±i mt in€OrrrtaWD,
i a.<J*a w?e lot t??t * 4i his !^ *. at:d ? 111MCrscanc: die cextns tVMA.
By Dam
For Fmnfid d C rW ation ? ?f ??_ Date -2/1, '("
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNFIELD CORPORATION,
Plaintiff,
V. No. 07-13
ROBERT G. RINKER,
Defendant.
PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS
1. Preliminary Objection No. 1- Legal Insufficiency
1. Admitted.
2. Admitted.
3. Denied as stated. The corresponding paragraph contains improper factual
information, contradicts the allegations in Plaintiff's Complaint and is, therefore, a "speaking
demurrer" and may not be considered by the Court. See Martin v. PENNDOT, 124 Pa.Cmwlth.
625, 556 A.2d 969 (1989). By way of further response, it is improper for Rinker to dispute
allegations contained in Pennfield's Complaint because, by virtue of filing Preliminary
Objections, the Court and Rinker accept all of Pennfield's allegations as true. Toward that end,
when ruling on Preliminary Objections in the nature of a demurrer, the Court must accept as true
all of the material facts set forth in the Complaint and all reasonable inferences therefrom.
Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d 1189, 1192 (Pa. Super. 2001); Moser v.
Heistand, 545 Pa. 554, 559, 681 A.2d 1322, 1325 (1996).
4. Denied. The referenced Agreement is a writing, which speaks for itself.
5. Admitted upon information and belief.
6. Denied. The referenced case is a writing, which speaks for itself. By way of
further response, any legal interpretation or characterization of Insulation Corp. of America v.
1.
Brobston, 446 Pa. Super. 520, 528 (1995) is denied as a legal conclusion to which no response is
necessary. By way of further response, it is specifically denied that the selective quote used by
the Defendant accurately characterizes Brobston.
7. Denied as stated. The Agreement contains an implicit geographical limit as it
only applies to Pennfield's customers. By way of further response, see Pennfield's Brief in
Opposition to Defendant's Preliminary Objections.
8-11. Denied as conclusions of law.
II. Preliminary Objection No. 2 - Legal Insufficiency (Demurrer)
12. The foregoing responses are incorporated herein as though set forth in full.
13. Denied. See response to Paragraph 6.
14. Denied. The referenced document is a writing, which speaks for itself. By way
of further response, see response to Paragraph 3.
15. Denied. See response to Paragraph 6.
16-17. Denied as conclusions of law.
III. Preliminary Objection No. 3 - Legal Insufficiency (Demurrer)
18. The foregoing responses are incorporated herein as though set forth in full.
19. Denied. The referenced Agreement is a writing, which speaks for itself.
20. Denied. See response to Paragraph 3.
21. Denied. See response to Paragraph 3.
22-25. Denied as conclusions of law to which no responses are necessary.
IV. Preliminary Objection No. 4 - Insufficient Specificity
26. The foregoing responses are incorporated herein as though set forth in full.
80753
-2-
27. Denied. The corresponding paragraph references a writing, which speaks for
itself.
28. Denied as stated. The Pennfield's adequately supports its claims with sufficient
detail centering on the improper competition carried out by Rinker.
29-31. Denied. See response to Paragraph 28.
32-33. Denied as stated. See response to Paragraph 3.
34. Denied as a conclusion of law.
& GRIMM LLP
Dated: 9 a 1 G? By:
N. At key, Es uire
rev BIW\o. 0341
John S. awl uin
Attorney o. 87415
24 North Lime Street
Lancaster, PA 17602
(717) 392-1100
Counsel for Plaintiff,
Pennfield Corporation
80753
-3-
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of Plaintiff's Response to Defendant's
Preliminary Objections upon the following person(s) on the date and in the manner indicated
below.
Service via Federal Express:
Joseph A. Macaluso, Esquire
P.O. Box 83
Orrstown, PA 17244
Dated: ,g&` U? By:
80753
-4-
rv
N
N `a? ?
,. .z7
co
PENNFIELD CORPORATION, IN THE COURT OF COMMON PLEA OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. CIVIL ACTION - LAW
NO. 07-013
ROBERT G. RINKER,
Defendant
: PRELIMINARY O
BEFORE BAYLEY, P.J., AND HESS, J.
ORDER
AND NOW, this 17` day of May, 2007, following argument thereon,lthe preliminary
objections of the defendant are DISMISSED.
BY THE COURT,
. 4 C?/'
Kevin ,A. Hess, J.
ric N. Athey, Esquire
John S. Lawler, Esquire
For the Plaintiff
X ?",eph A. Macaluso, Esquire
For the Defendant J
rlm
A
/.o
o/
1 9 :ei "!J L I );"Ad t00Z
ra t . ?'Hi ?o
?`Ej
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
PENNFIELD CORPORATION,
Plaintiff,
No. 07 - 13
V.
ROBERT G. RINKER,
Defendant
NOTICE TO PLEAD
To: Pennfield Corporation c/o John S. Lawler, Esq., Kegel Kelin Almy
& Grimm LLP, 24 North Lime St., Lancaster, PA 17602
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.
Date: June 6, 2007
Jose h A. Maca(uso
orn y for Defendant
Su a Court I.D.# 38262
P.O. Box 83
Orrstown, PA 17244
(717) 532-4832
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
PENNFIELD CORPORATION,
Plaintiff,
No. 07 - 13
V.
ROBERT G. RINKER,
Defendant
ANSWER AND NEW MATTER
Defendant, Robert G. Rinker, by and through his attorney, Joseph A. Macaluso,
hereby answers the complaint of Pennfield Corporation, as follows:
ANSWER
1. Admitted.
2. Admitted.
3. Admitted.
4. Defendant lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 4. Defendant avers that the means of
proof of same are within the control of plaintiff, therefore, defendant requires strict proof
thereof at trial.
5. It is specifically denied that defendant had any access whatsoever to the
information listed in Paragraph 5, and it is specifically denied that defendant was hired
on the date stated. Further answering, defendant was hired on June 10, 2003, not July
14, 2003, being the date he began employment with defendant.
6. The allegations of Paragraph 6 are admitted in part and denied in part. It is
specifically denied that defendant was required to sign the Agreement at the time he
was hired on June 10, 2003; he signed the Agreement on June 16, 2003. The
remaining allegations of Paragraph 6 are admitted.
7. Paragraph 7 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, defendant specifically denies that the
covenant-not-compete utilizes the phraseolgy "not to directly or indirectly compete".
It is admitted that the covenant-not-compete set forth in Paragraph 7 is contained in the
Agreement.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Paragraph 12 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, defendant specifically denies that he
has competed with plaintiff since his employment with plaintiff was terminated, and
defendant specifically denies that he has steered customers to other competing firms,
and defendant specifically denies that he had access to or used confidential
information of plainitff. Further answering, plaintiff fails to allege any specific facts to
support its allegations.
13. The allegations of Paragraph 13 are admitted in part and denied in part.
Defendant specifically denies the allegations that has competed with plaintiff or
solicited plaintiffs customers to buy products from him. Further answering, plaintiff fails
to allege any specific facts to support its allegations. It is admitted that defendant
received the letter dated October 16, 2006.
14. Defendant specifically denies that he has competed with plaintiff since his
employment with plaintiff was terminated, and defendant specifically denies that he has
asked customers not to report competition.
15. The allegations of Paragraph 15 are admitted in part and denied in part.
Defendant specifically denies that he has competed with plaintiff since his employment
with plaintiff was terminated, and defendant specifically denies that he has any
proprietary information and trade secrets of plaintiff. It is admitted that defendant
received the letter dated November 21, 2006.
ANSWER TO COUNT I
16. Paragraph 16 contains an incorporation by reference of the allegations of
Paragraphs 1 through 15 of the complaint, which have been answered above and to
which no further response is required.
17. Paragraph 17 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, defendant specifically denies that he
has breached the Agreement, and defendant specifically denies that he has competed
with plaintiff since his employment with plaintiff was terminated, and defendant
specifically denies that he had access to or used confidential information of plaintiff.
Further answering, plaintiff fails to allege any specific facts to support its allegations.
18. Paragraph 18 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, defendant specifically denies that he
has caused any damage to plaintiff or that plaintiff has even incurred damages or harm,
and defendant specifically denies that he has violated the Agreement. Further
answering, defendant repeats his answer in Paragraph 12 above as though set forth in
extenso. Further answering, plaintiff fails to allege any specific facts to support its
allegations.
WHEREFORE, defendant demands dismissal of Count I of the complaint and that
judgment be entered in his favor and against plaintiff.
ANSWER TO COUNT II
19. Paragraph 19 contains an incorporation by reference of the allegations of
Paragraphs 1 through 18 of the complaint, which have been answered above and to
which no further response is required.
20. Defendant specifically denies that he had access to or used confidential
information of plaintiff, and defendant specifically denies that he has steered customers
away from plaintiff. Further answering, plaintiff fails to allege any specific facts to
support its allegations.
21. Paragraph 21 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, defendant specifically denies that he
has interfered with prospective contractual relations of plaintiff. Further answering,
New Matter:
33. Any loss incurred by plaintiff due to loss of its customers is the direct result of
its own failure to market it products and serve its customers in a satisfactory manner,
and is not due to any action of defendant whatsoever.
34. Plaintiff has failed to state a valid claim against defendant upon which relief
can be granted.
35. Defendant's employment with plaintiff was "at will", as set forth in Paragraph 2
of the Agreement.
36. Defendant was employed as an Area Manager whose job was to sell feed to
farmers.
37. Paragraph 3 of the Agreement states that the non-competition Agreement
applies to defendant "without any geographic limitation." (Emphasis added)
38. The non-competition covenant in the Agreement is not enforceable, because
Paragraph 3 of the Agreement is not limited in territory.
39. As such, application of Paragraph 3 of the Agreement "without any geographic
limitation" constitutes an undue hardship upon defendant.
40. It is not reasonably necessary for plaintiffs protection for Paragraph 3 of the
Agreement to apply "without any geographic limitation."
41. Defendant was terminated by plaintiff because of "not meeting required sales
goals" (see termination notice attached hereto as Exhibit A).
42. By terminating defendant's employment, there was an implicit decision on the
part of plaintiff that its business interests were best promoted without defendant in its
service, and so the need to protect itself from defendant was diminished by the fact that
the defendant's worth to plaintiff was presumably insignificant.
43. Paragraph 3 of the Agreement states that defendant "shall not; either directly or
indirectly through another employer or another business colleague; contact ...
any of Pennfield's customers." (Emphasis added)
44. Defendant has been engaged in business as a consultant to farmers relative to
nutrition and agricultural practices since he was dismissed by plaintiff, and defendant
has been acquainted with these farmers prior to his employment with plaintiff.
45. The farmers contacted defendant as a nutritional and agricultural consultant,
and defendant did not solicit them.
46. Moreover, defendant was not employed by plaintiff as a nutritional and
agricultural consultant, but as a salesman.
47. The restriction contained in Paragraph 3 of the Agreement that defendant shall
not contact customers of plaintiff under the circumstances constitutes an undue
hardship upon defendant.
48. Paragraph 3 of the Agreement is unenforceable because it is overly broad and
unreasonable as applied to defendant.
49. It is not reasonably necessary for plaintiffs protection that defendant be
restricted from contact with plaintiffs customers to serve them as a nutritional and
agricultural consultant.
50. Paragraph 3 of the Agreement states that defendant "shall not; either directly or
indirectly through another employer or another business colleague; contact, solicit
sales from, attempt in any manner to solicit sales from, or sell to any Pennfield's
customers." (Emphasis added)
51. Defendant has not engaged in any sales of products that plaintiff sells, or in any
sales of products of any kind whatsoever, since he was dismissed by plaintiff.
52. Defendant has been engaged in business as a consultant to farmers and
he has not made solicitations to them to buy products from him.
53. Any loss incurred by plaintiff due to loss of its customers is the direct result of
its customers being dissatisfied with plaintiffs service or product, or the direct result of
its customers simply deciding to do business with a competitor, and is not the result
of defendant's actions.
WHEREFORE, defendant demands dismissal of the complaint and that
judgment be entered in his favor and against plaintiff.
submitte
Jos ph A. Macaluso, Esq.
Sup me Court I.D. # 38262
Alt?Aey for Defendant Robert G. Rinker
P.O. Box 83
Orrstown, PA 17244
(717) 532-4832
VERIFICATION
I, Robert G. Rinker, verify that the statements made in the foregoing answer and new
matter are true and accurate to the best of my personal knowledge, information and
belief. I understand that my statements are made subject to the penalties of 18 Pa.
C.S..Sqction 4904, rplating_unsworn falsification to authorities.
G. Rinker
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of June, 2007, 1 caused to be served a true and
correct copy of the answer and new matter of defendant, upon the following individual
by first class mail postage prepaid:
Kegel Kelin Almy & Grimm LLP
Attn.: John S. Lawler, Esq.
24 North Lime St.
Lancaster, PA 17602
1 further certify that the statements made herein are true and correct, and I
understand that if any false statements were made herein, the same would be
subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn
falsification to authorities.
Dated: June 6, 2007
1 "19; 2?Ju7 07: 40 3614782323 GREG RINKER PAGE 01
11
TO. GREG R1NKER
FRO AX BRUCEWEAVER
SUB.I'EC'T: TEXMINA12ON
DATE: September 2a, 2006
Wwr
Tilis letter is to irdbrrn you that your employment is terminated effective September zo, 2006. This
ccrin ination is dust: to pexformanas in not meeting required sales goats. You will rweivc four weea'
severa.ttre pay in Lieu of any Yacadm or holiday pay, ending on October 17, 2006. This will be paid
at your base rate of $770 per week.
1411 an Resources will Via you information related to benefits in the next few days. Your group
health and life ittswamm bcn&ts will end on Stptiernber aa, 2006, your last day of cuTloymestt
T Creafter, you have Ce tQ elea the contWuadon of health insurance be_nedts (COBRA.)
by malting timely ztotlt-ica an.
°leme arrange for the remm of any companY prWerty ice" your possession.
Foxward any Runzheim:er information to Scott Nay3or for processing.
If you move, gl,casc provide us WWII yOUT new address so that we may fvxw-ard withholding tat or
x11y addiU0tt11 pes•t?ttenr irtform5?*ion.
! adg1O%' lit rectip* of this lettr.:•. and l ltrmdersGrul drr terms haeiA.
By Oft Dam
For Femfttld CalwaWn Date a2Od L
N M
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNFIELD CORPORATION,
Plaintiff,
V. NO. 07-13
ROBERT G. RINKER,
Defendant.
PLAINTIFF'S ANSWER TO NEW MATTER
Plaintiff Pennfield Corporation, incorporating the allegations set forth in its Complaint,
hereby responds to Defendant Rinker's Answer with New Matter as follows:
33. Denied. Plaintiff has suffered damages as a result of Rinker's breach of contract
and other unlawful conduct. Upon information and belief, such damages will become apparent
during discovery.
34. Denied as a conclusion of law.
35. Admitted in part, denied in part. It is admitted that Mr. Rinker was employed on
an "at will" basis. Any characterizations of the Agreement are denied as the Agreement is a
writing, which speaks for itself.
36. Denied as stated. See Mr. Rinker's Job Description which is attached hereto and
made a part hereof as Exhibit A.
37. Denied. The stated Agreement is a writing, which speaks for itself.
38-40. Denied as conclusions of law to which no response is necessary.
41. Denied. The referenced exhibit is a writing which speaks for itself.
42. Denied. The corresponding allegation amounts to unjustified legal conclusions,
inferences, argumentative allegations, and/or expressions of opinion and no response is,
therefore, required. To the extent a response is required, any conclusion or opinion Defendant
reaches is specifically denied, unrecognized and strict proof thereof is demanded.
43. Denied. The quoted text is from a writing, which speaks for itself.
44. Denied as stated. Mr. Rinker is unlawfully competing against Pennfield and
exploiting the confidential and proprietary information he obtained from Pennfield in order to do
so. By way of further answer, see allegations in Pennfield's Complaint.
45. Denied. After reasonable investigation, Plaintiff is without knowledge or
information sufficient to state a response and the same is, therefore, denied.
46. Denied. Mr. Rinker was a salesman and providing consulting services for
Pennfield.
47- 49. Denied as conclusions of law to which no responses are necessary.
50. Denied. The referenced Agreement is a writing, which speaks for itself.
51. Denied. The corresponding allegations are specifically denied for the reasons set
forth in Plaintiff's Complaint. Strict proof is demanded.
52. Denied. After reasonable investigation, Plaintiff is without knowledge or
information sufficient to state a response and the same is, therefore, denied.
53. Denied. The corresponding allegation contains unjustified legal conclusions,
inferences, argumentative allegations, and/or expressions of opinion and no response is,
therefore, required. To the extent a response is required, Plaintiff has suffered damages as a
result of Mr. Rinker's unlawful competition.
WHEREFORE, Pennfield Corporation respectfully requests injunctive relief, as set forth
in its Complaint, as well as a judgment in its favor and against Rinker, in an amount to be
determined at trial.
83427 -2-
Date: ?;hqk - 7
KEG
By:_
Eric
John S.
Y, Esquire
No. 63341
ler, Esquire
Attorney ID No. 87415
24 North Lime Street
Lancaster, PA 17602
(717) 392-1100
Counsel for Plaintiff,
Pennfield Corporation
GRIMM LLP
83427 -3-
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of Plaintiff's Answer to New Matter upon the
following person(s) on the date and in the manner indicated below.
Service via regular mail:
Joseph A. Macaluso, Esquire
P.O. Box 83
Orrstown, PA 17244
Dated: G? By:
83427 -4-
rgjDpennfield
orPoration
POSITION DESCRIPTION
POSITION TITLE: FDairy Feed Sales Rep REPORTS T0: Regional Sales Manager
INCUMBENT: All DATE: July 1, 2006
DIVISION: Animal Feed Technologies ANALYST: Chief People Officer
DEPARTMENT: Dairy Feed Sales APPROVED BY: S. Kramer
LOCATION: All Regions
1. Developed 5/22/06 - C. Dern, T. Chivinski, S. Peck
2. Revised 6/6/06 - Northern Region
3. Revised 6/16/06 - Eastern Region
4. Revised 6/20/06 - Western Region
POSITION PURPOSE
Responsible for achieving established sales objectives and action-plan tonnage goals. Sells dairy feed and
related products by calling on prospective and established customers. Maintains sales programs within
assigned territory and provides assistance to our customers.
DIMENSIONS Carl -- need numbers
East North West
Number of Customers: 50-75
Annual Tons Sold:
Annual Gross Margin $S
NATURE AND SCOPE
Key Results Areas
Tons sold; gross-margin dollars generated; number of cows being fed (market share); uncovers farmers
needs, ideas and challenges and conveys them to Pennfield; communicates new ideas and information to
the customer; monitors competitive activity and trends within the territory; assists to bring accounts
receivable aging to current status; overall net growth of the business.
ESSENTIAL FUNCTIONS Et BASIC DUTIES
Solicits and contacts all dairy customers within the assigned territory by making calls to each
customer several times a month/year, depending on account size, potential and influence the
customer has in the community.
Primarily sells dairy feed, including calf, but is encouraged to sell other Pennfield products; i.e.,
horse, swine, sheep, goat and rabbit feeds.
Approximately 20% to 50% of the time is spent prospecting new accounts. Additional services
may be required to obtain established sales objective.
• Provides superior customer service to everyone he/she comes in contact with while performing
the duties and responsibilities of this position.
• Obtains forage analyses, Computerized Total Ration (CTR) dairy formulation programs and
Precision Formulated Ration (PFR) concentrate to go into the CTR. Obtains samples of dairy
farmers' forages and forwards them to the laboratory for analysis. The salesperson enters the
results into the computer with other important statistics and information; i.e., cow weight, milk
and butterfat production, available forages, etc. The combined data is used to determine the
best-cost feeding program to supplement on-farm feed material(s).
• Reviews computer data, makes adjustments and is responsible for final decision on the feeding
program that will be recommended to the customer. The final decision takes into account the
recommendations from the CTR and the needs of the customer, along with providing a high-
quality product that meets customer's expectations.
• Serves as liaison between the customer and the company. When difficulties arise or the
customer has a problem regarding animal performance, feed quality, delivery, etc., the sales
representative will obtain a feed sample and forward it to the Customer Service Supervisor, along
with an explanation of the problem.
• Completes credit applications and forwards them to the Credit Department. Responsible for
accounts receivable when credit issues arise. Questions regarding billing are to be directed to
the Credit Department or Customer Service.
• As a Public Relations/Sales Ambassador, the incumbent represents and promotes Pennfield at
community functions and other agri cultural-related meetings and with customers. Must be
available to work beyond "normal" business hours.
• Implements and performs feed-sales promotion duties and provides input for the advertising
program by recommending where advertising dollars can be spent most effectively within the
assigned territory.
• Helps plan and conduct annual feeder meetings, within the assigned territory, to promote the
latest technology in nutrition and products, in order to help the dairy farmer make better
management/ buying decisions.
• Provides sales expertise to assist in planning, developing and implementing a profitable feed-
marketing program that will maintain the division's reputation for customer service and
competitive prices and ensure continued sales growth.
• Contributes to the successful and profitable operation of the division and his/her dairy
customers.
Supervisory Responsibilities
There are no supervisory responsibilities associated with this position.
QUALIFICATIONS AND/OR EXPERIENCE
• Bachelor's or Associate's degree with emphasis on agriculture or animal science, or equivalent
experience exhibiting success in relative field
• Diverse people skills to interact with a variety of internal and external customers
• Commitment to Pennfield's guiding principles
• Understanding and enjoyment of the profession of "selling"
• A competitive nature and a desire to succeed
• Commitment to personal and business growth, while valuing and helping others
• Understanding of or willingness to learn about farming, i.e., processes, equipment, practices,
government and industry programs, etc.
• Understanding of and interest in dairy production, i.e. breeding, management, forages,
nutrition, and related software to perform ratio balancing
• A valid driver's license and safe driving record
Required Skills
To perform this job successfully, an individual must be able to perform each essential duty satisfactorily.
The following requirements are representative of the knowledge, skill, and/or ability required:
0 Willingness to advance knowledge in areas of importance to the organization and industry
• Ability to read, analyze and interpret common scientific and technical journals, financial reports
and legal documents; respond to common inquiries or complaints from customers or members of
the business community; and effectively present information to top management, public groups
and/or board of directors.
• Ability to calculate figures and amounts such as discounts, interest, commissions, proportions,
percentages, areas, circumference and volume and ability to apply concepts of basic algebra and
geometry.
• Ability to define problems, collect data, establish facts and draw valid conclusions; interpret an
extensive variety of technical instructions in mathematical or diagram form and deal with several
abstract and concrete variables.
• Proficient in common computer applications and software; i.e., Excel, Word.
ACTIVITIES AND REQUIREMENTS
Physical Demands
While performing the essential functions of this job, the employee is regularly required to use hands to
finger, handle or feel objects, tools or controls; and talk or hear. The associate is required to drive for
long periods of time, is frequently required to sit and reach with hands and arms; is occasionally required
to stand, walk, stoop, kneel, crouch, climb, and go up and down stairs. The associate must frequently
lift and/or move up to fifty (50) pounds and occasionally lift and/or move up to eighty (80) pounds. Close
vision, distance vision, color vision, depth perception and the ability to focus are also required.
Reasonable accommodations may be made to enable individuals with disabilities to perform the essential
functions.
Work Environment
The noise level in the work environment and/or automobile is usually moderate; occasionally, the
associate may experience higher noise levels when visiting customers
Management retains the right to add or change the duties of this position at any time.
O
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- -73
Pennfield Corporation
Plaintiff
vs
Robert G. Rinker
Defendant
TO THE PROTHONOTARY:
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 07-0013 Civil Term
PRAECIPE
Please mark this matter as withdrawn without prejudice.
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David D. Buell, Prothonotary
20
Attorney Info: ??Zz
Amy G. Macinanti, Esq. 2
Atto e for Plaintiff
Attorney I.D. No. 73609
Kegel Kelin Almy & Grimm LLP
24 North Lime Street, Lancaster, PA 17602
(717) 392-1100