HomeMy WebLinkAbout94-03270
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10. AI pari of Lynam's conlracl for employmenl, Defendanl Lynam aUlhorlzed
JfC 10 Inslllule proceedings "In any courl of compelenl jurlsdlcllon, ellher In law or equllY
10 oblaln damages for any breach nf Ihe Employee, or to enjoin Employee from performing
service for any other person during the period herein cunlracted fur ...",
It. Addlllonally, as pari of the employmenl conlracl, Defendanl Lynam agreed
10 Indemnify JFC agalnsl any damage, cosls, and expenses, including reasonable allorne)'l'
fees Incurred in defending or comprising any claim arising oul of Lynam's breach of
conlract.
12. JFC will suffer Irreparable harm from Ihe lOll of confldenllal buslnell
Informallon and cllenls If Ihe requelled relief II nol granled.
13, JfC does not have an adequale remedy allow,
WIIEREFORE, Plalnllff JPC relpeclfully requesll Ihallhllllonorable Courl
provide 1\ relief BI follows:
(a) enjoin Defendanl Lynam from sollclllng, accepllng,adverllslng
for, or servicing auy pallor prelelll cllenls of J FC for a period of one (I) year
following Ihe enlry of Ihls Courl's Order;
(b) enjoining Defendanl Lynam, from making use, directly or
Indlreclly, of any confldenliallnformullon gained by Defendanl Lynam while
an employee of JFC;
(c) orderlnll Defendanl Lynam 10 provide JIlC wlllt a slrlct
lIccounlins of all profits earned or due which have been made as a re.ult of
3
JUN, -01' 941WEDI 07,33
p, 001
,FC PERIONNIlL ' ,FC TEMPI. ,Fe 6l!ARCtl
111I MIIUl .. ",0, to. 1M I CMlp Hili. fA IIlIIH.... (?II') N''- I ,All (7m 'II""
AOIII.H.IIT
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.nt.r'd Into thl. ~~ day
, 1"~, by .rid b.tw..n
.e
'hit A'r....nt,
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..dl and
3rc ,..,.. %nG.I:rC .ro ,...., In..1
3,e '.r.onD.1, Ino./Jre 'aarah
lh.r'ln.rt.r r.r"I.d to a. ':IC')
.nd
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I Ira na ttr re arr.. to .. "'Iun..' r
lIe ,...., Ino. ... lIe 'ro T...., I... 0""" ,..,.w." ,.1,
..,vle.., 3.e ..'.....1 JDa. .,.r.t.. . ,.,....., .1......, ....."
... J,e ...,.h I..r.'.. . ,.I'1I1tl.. ... .1.....nt ..rvl...
'.nll
1. Jrc .1' I.'LOY" "'11 .. .....1.'.. II ...l.,.r ...
...l'r" ., . ,.tl 0' .0......'lon t. .. .,r... 1I,ln b.'.... "~I
PUUII, hO""u, 111 "'11"', .nU,-.hrl., .1..., 1..lIr....
. .l.n. or oth.r lno.ntlv.1 lad ~Inltlt. will ~. .nd r...ln
00..I.tl1r It thl dllcr.tla. ot lre. lre II lOt Obll,.,.. to ,.r
. '.nll' " "y ...hy... l't 11 .,r..' t,hat .n, bonll. I. lot
,"'lIlt" without v.ll1.' .00'1'.r"I'., ... 1.,.11, 1I...'.r....l..
rro. tl.. to tl.. lre .., b.,. OODt.lt. In "blob It 1. po..lbl. tor
the ..,10"1 to b. .11,lb1. 'or. 'onu.. I. IUC' b..u. .b.l1 b.
plld to In ,.,10'1' "h. Ifll .11,lbl. '.r I ~.n\l' I' .lIlb ..,1.,..
1. lot Wltbll tb. hlrl .r lIe .t tb. tl.. .\I.b bOIIl. I. ,.1'.
UIlIMilllv.. .,." 1_, f^ l'lIOl
('171 M I4lt
111I r htaBll II, \,"" fA lltlD
m'lN'''''
t'VI ,,~ .. , II.......,., rt. 111119
m'l ~\',fIll
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JUN,'08' 94lWEOI 07: 35
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P. ,DOl
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2. IH.LOYII .cknovl.d,.. th.t 3rc vil1 ..t.nd aonlid.r.bl.
i.., .'fort and ..p.n'l 1n training IH'LOr.1 1n thl ..tbod. u.ed
y 3rc and that IH.LOYII vill .cquirl confid.nti.l knowled,. and
nCor..tion a. to 3rC'. Iccount., aUlto..rl, .nd bu. In... Pltron.,
. .a11 .1 oonCidlDci.l knowl.d,. .nd Lnfor..tlon aonc.rnin, the
athad., for.., .nd aontulltl ulld by nc, that IM'LOVII .,111
.0.Lv. ,uDh ..p.rl.nc. that upon l.avin,JrC'. ..plov-.nt Cor any
.a.on, hl. .nva,in, dir.otlv or indlr.otly, .ithlr .10n. or ia
,,00Lltlon with any oth.r p.r.on or Clr. ln a .i.ilar bu.ina.. to
hat ., Jrc, .r to tbat oC a duly authorl.ad 110..... DC JrC 0'
.., '11I'..rr11~ur,'C.rli.l"LaDea.tar"ork Olr a., Itbar Jrc
Uie., .-Iob I.,.,..ant wUl ,r...nt bre,.r...l. lI.n ... Uu.d.l
,... I. JrC, all 0' wblob b.n 1. Dot oa,'1I1' o~ ,r.ei.. or ~.a.'
ro.e or o.l.ul.tion, ..,loy.., "hl1. la th. hire 0' Jrt or withln
It ... ,..r a't.r l..vl., the hire of JrC will '0' dlr.c'l',or
.Ur..Uy l.cuo. or au...c to inUu..ClI anr 1..10'" to t.nlnn.
i. or lI.r ..,lo,..ot wlth Jrc.
3. IM'LOTl., th.r.Cor., .,r... th.t h./.bl vill not whl11 ln
rc:' I ...lor nor wUbin . ,ulod of an. (1) Y'U foUowln,
.niDatloa 0' ..plO,.'Dt for .ar aau.. whlt.o...r, dlr.otly or
..lr.otly 'D,',' in anr bu.lna.. for bi...lt/hlr..lf or aot .1 an
.,lor..,a,.., or b. In ...oclacion In '.V ca,loltr witb "r otbar
,.r... or 'ira ..,a,e. ia . .i.llar ~U.1DI'1 to 3rc:'. or ..rwla..
I
curre.tlr ..,a,.d br 3rc witbin a ..v..ty-fiv. (71) all. ~adlu. ot
JUN, -08' 941WEOI 07: 34
p, P03
anv clty ln whloh a JFC offlcl 1. loclted, EHPLOYEE acknowl.dge.
that doln, .0 ln any .ann.r would lnt.rf.r. wlth, dl.turb, dl.rupt,
.lIena.. or otharvlu '.opardlu the budn... of Jrc and lta
u.ploy..., nor vlll EH'LOYII do .nvthln, whlah t.nd. to take av.y
IIr dl.lnl.h the tnd., bulin..., or vood vlll ot Jrc, nor will
ICHnOll1 ,iv, to anv other p.non or Un t.h. b.n.Ut or advanu,.
lit Jrc'. ..thod. or for.., or the knowl.d,., infor.atlon, cont..ct
II...., p..t or preunt cueto..u, and ..pU'laDC' .o,uind by
.INnOn. wbU. ..,loy.. by nc.
., 1...LOn. a,r... upon t.rain.tlon of hi. ..,lora.nt with
;Ir~ for '.IlY rellon whtlOUU, to return to "r. J.... C.re""'l or
II ...1,..t.' r.'t....t.tiv. of Jrc .11 r.eor'" ...u.l., e.,i.. 01
'~..ar" ... ....... ,art..lala, to tranuaUo.. b.dl.. .., _~nl
,'bU. ....ai.t.. with JrC, aDd ill th. IYlIlt 1...LOnl ....U laU ta
~I. .., 0" 111 tb. UlIlt IIIILOTlI Ihlll yiolatl tlah i..tut.
.,.r....It, .....on. ....u forhit aU chi.. to UD,'''' ea"ll1"'"
~q.u... an. b...tit. without art.ctin, the ri.ht of Jrc to 00.,.1
the return of ..U reood., p.p.n, and .anu.h.
I. ....4" for '.naeb,. loth parti.. nco,nl.. thlt the
..rvle.. to ~. r,,'ara' u..ar tbll Alr....nt by tb. l.ploV" ar.
.p.ol.1, uni,u., ... of ..tr.ordin.ry cbaraet.r, and th.t 1n tb.
.Vlnt of tb. brucb of Jrc of t.nl Ind condlUon. of tU.
j,r.....t to b. ,Irfora.d by bl. or in th. ...nt 1.,loy.. .hall
IIltbout tb. wrlU.n COIll..t of nc h.v, it. ..ployalllt and
'.rr...., 1. tll. futur., ..rvlo.. ror .ny p.r.on, flra or
, dUN, 'OOmED I 07,34
p, 004 ,
.
aOl',oration Inga,.d in a oft.pltln, I1n. of bu.ln..1 wlth JrC, Jrc
.hall b. .nt&tll', l' it .0 11Iat., to In.titutl and prol.cut.
proc..din, in any court ot co.p.t.nt 'Ufl..1ctlon lith.r in law or
.quitV to obt.ln d.I.I" tor .nv br.aoh ot thl ~IPloYI' Of to
In,oln .lploV" trot P'I"ol'.lng ..rvio. 'or anv othlr p.r.on, lir.
or oorpoutlan, durinl tho ,trio' b.nln oontl'.au' 'or, but
notftln, b.r.in contlln.G .b.ll b. con.eru.d to ,rlvlnt .uoh r....y
in the oourtl, in 0'.' of .nv br.ach of thl1 .gr....nt bV .I,loV"
I' JrC ..y 11.ot to invok..
1ft I..ition to JrC'. rllbt of aotioo lor .u.taiDI. 4..a,.. by .
braaoh of lal. oov.I.nt., tal ,.rtl.. ft.r.to .11'" th.t JrC will
_.v. "" '"rt~er I'l.~t to .afere. tll... en.n.IU bV 1"IIUle
r....i.., wblob Ib.l1 i.oll1'" ."D, otll.1' '~il", '..,.~al'r
r...rlllll, 01"'1" In. t..,.r.rv .n' ,.ra.n.at injunctlon..
E' 3Ie 111011 b. r.,ulr.' ~r a"li.abl. la. to furnlla a b.I' ar
atlln IlIl'nl' .. . ....hieD U t~. IOUV of an lll'UI.U.. 01'
renrl&I&.I or'er a.da" .I,loVII (or or on .aaount d the
flolatlon of th.l. cOVlnontl, ..,lovo, b.r.bV "1"'1 tb.t .ucll bonG
- Dr othlr .urltv .av kl in the .ini.u. a.ount a110wabl. bV 1...
.. r'''.IUlt.v, ..ploV" .blll In'.lnUy JrC ...lnn .ar
......., ..n., 0" ........, he1u4h, r...olloblt attorn.v'. r...,
lncurro' h 'do,'&n, or c.I,rllln, U)' ald. ar&."", .u~ of
.., le V" , I WE'D., 'II 1 It.......n, fbh lad",,"e)' IbaU .unh, tb.
t.raSnotlen ef thla A'r....nt.
JUN, '-08' 941~EDI 07:35
P. ~06
7. ~. JrC .hall not b. l1lbl. to ClploV" for anv
..p.n... 1ncurr.. by hil, nor Ihall Ilploy.. b. liabl. to Jrc tor
ott1o. h.lp or I.p.nl. and thl Elploy.e .hall hlv, no authority to
bLnd JrC by any prodll or repr...ntat1on, unl... IplaULcally
luthoriz.. in writLng to do 10. Bu.Ln... r.llt.. expln..., .ueh I'
lil..g. to IDd tro. a bUlin... r.llt.d functLon, .hall b.
r.llbur... to ..ploy.. on .n ..p.n.. .ccount, Iccordin, to ll.lt.
..t by ..n.....nt.
I, Ilhar. faUure to in.l.t upoa Itdce co.pUanc. with any
of tha t.ra., cov.naat., or con.itlon. b.r.o~ Iball not b. d.....
I v.iv.r at .uoh t.r., cov.naat or condltio., nor .hall Iny v.lv.r
.'
or r.ll.~l'b...t .~ .ay rl,bt o~ p...r ~.r,uI..r It any 0.. ti..
or .or. ti... b. d..... a vaiv.r at r.lln.ui.h..nt at .uah ri,ht ot
po..r at any oa. tl.. or ti....
t. ~. the invalidity or un.aforo.abllity ot anr
~rovi.ion h.r.ot .b.ll ln no .IY .trect the validity or
~nforc.abLI1ty at Iny oth.r provLI1on.
11. ~o.LI~catiqD. fhL. AVr....nt canaot b. eban,.., .odifL..
~r di.chlr,ld orally, but only a. aon..nt.d to in vritin. by both
1'lrU...
It LI turth.r und.r.tood thlt, in tbl .v.nt of t.r.1n.tion at
.aplo,...t tor IB, r...on, 10 eOII1..1oa., bonu... or b.nefit.
MARK E. LYNAM,
Respondent
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
:
I
I
:
:
: 94-3270 EQUITY TERM
JFC ASSOCIATES,
peti tioner
V.
ORDER OF COURT
AND NOW, this 7th day of July, 1994, the parties
having appeared on a petition of Plaintiff seeking a preliminary
injunction, and their having reached an agreement for the entry
of a permanent injunction as a final Bdjudicat~on of all claims
raised in the Complaint in Equity as well as the petition for a
preliminary injunction, it is ordered that:
1, Respondent, Mark E. Lynam, shall refrain from
contacting the following individuals as candidates for
employment. Norman G. smith, Edward Brown, curtis Smith, Carl
Gentile, Edward McKay, David Fluke, Jeff Whitlock, Fred Amstotz.
2. Respondent shall refrain from seeking to
place candidates for employment with the following employers:
Alcon surgical and Drown Transmission,
3. Respondent shall refrain from personally
contacting candidates for employment known to him only through
Petitioner's database, or from employing information concerning
those candidates through his employer.
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9J.9411i1f11Ilifipl,...
...,07106194
v.
I IN TilE COURT OF COMMON PLEAS OF
: CUMBERLANO COUNTY, PENNSYLVANIA
I
I
: No, 94-3270 EQUITY TERM
I
I
Jro ASSOCIATIS
HARK I, LYNAM
ANSWEIt (W I>IWENUAN'I'/ltESPONUENT
TO I)LAINl'IIi'Ii"S I'E'I'ITION 1i'0I{ 1'lmLlMINAItY INJUNCTION
1'0 TIII~ 1l0NORAJlU~ EJ)GAlt II. IIA \'LEY, JUmm ()11 SAm COURT:
'I'he llefendant/Respondent, Mark E. Lynam, by his attorney,
Jeffrey J. Reich, answers the Plaintiff's Petition For
Preliminary Injunction as follows:
1. Admitted in part and denied in part. Respondent
(hereinafter "Mr. Lynam") denies that JFC Associates is a
Pennsylvania corporation, Rather, Mr, Lynam believes, and
therefore avers, that "JPC Associates" is a fictitious name
registered to JFC Temps, Inc., a Pennsylvania corporation with
an address as stated in the Petition.
2. Admitted.
3. Admitted in part and denied in part. Mr. Lynam admits
that Mr. I,ynam signed Exh Ill! t "A", whi ch speaks for itself. Mr.
Lynam denieB that ElChibi t. "A" t.o ,H'C' B Pet! tion is enforceable
to the extent sought. by JFC for the reaBons Bel forth bulow.
4. Admi ttud,
5, Admitted in part and denied in part, Mr. I,ynam denies
that his duties included contacting prospeotlve temporary
employeel' rather, Hr. Lynam's duties were limited to working
with third party employsrs and candidates for full time
employment by the third party employers. The balance of the
allegations of this Paragraph are admitted.
6. Admitted in part and denied in part. Mr. Lynam admits
that Mr. Lynam's position gave him access to JFC's lists of
prospective employees. Such access did not amount to
"possession", as Mr. I,ynam did not have the ability to print
such lists and such lists coneisted of thousands of names. 'I'he
allegation that such information is "confidential inro~mation",
as that suggestion is B legal conclusion to be determined by the
Court. Dy way of further answer and explanation, many of the
namee appearing in JFC's lists of prospective employees
(referred to hereinafter as "candidates") alao appear in lists
maintained by other employment aljencies and by prospective
employers, While a candidate's name on the JFC list is
potentiallY confidential (where JFC's list is the only source or
the identity of the candidate) in isolated instances, more
typically vandidates submit their resumes and other information
to numerous employmont agencies and/or prospoctive employors, or
such names como to the attention of employment alJenoies and/or
prospeotive employers by way of the cBndidato's responBo to
media advertising or by way uf porsona! reforral by othsr
candidates. utilization of thOle sources which are independent
of JFC's list is not a use of confidential information
~2~
proprietary to JFC. As to JFC's allegation regarding Mr.
Lynam's access to "other confidential information proprietary to
JFC", without further specification ae to the nature of such
information Mr. Lynaln is unable to answer such allogation as he
lacks sufficient knowledge or information to form a belief as to
its truth. such allegation is therefore denied.
7. Admitted in part and denied in part. Mr, Lynam admits
that the quoted telCt is an accurate excarpt from Paragraph 3. of
ElChibit "A" to JFC's petition. Mr. Lynam denies that the quoted
elCcerpt binds him. Rather, the "restrictive covenant" is void
and unenforceable due to JFC's failure to deliver the
consideration mentioned in Paragraph 2. of Exhibit "A" to JFC's
Petition, specifically in that JFC did not "extend considerable
time, effort and elCpense" in training Mr. l,ynam. Rather, Mr.
Lynam received no training from Jl'C and any "on the job" selfM
training wae at no material expense to JFC, as JFC compensated
Mr. IJynam on a commission only basis. Furthermore, as .1FC seeks
to apply the covenant not to compete, the covenant is overly
broad and not reasonably related to the protection of JFC's
interest in its relationships with JFC'o clients, namely, the
third party employers which JFC Ilorves and from which .JFC
derivell ita income.
8. Admitted in part und denied in port. Mr. Lynam odmits
that he terminated his employment with JI'C. /luch termination
ocourred on June 2, 1994, and not on June 10, 1994, as atated in
-J-
JFC's Petition.
9. Admitted in part and denied in part, Mr. Lynam admits
that he entered into the employ of solution Technologies, Inc.,
(hereinafter called "S'!'I") Which is located in Lemoyne,
cumberland county, and did so on June 6, 1994. Mr. Lynum
specifically denies that STI is u competitor of JFC in the
employment industry. JFC is an employment agency. JFC is
contracted by third parties to identify and refer candidates for
potential hire as employees by such third parties. '!'he third
parties compensate JFC for its services us the third parties'
IIgent, and the third parties are JFC's "clients" or "customers".
Mr. Lynam now works in the personnel department of STI, where
his job is to interview and evaluate potential candidates for
employment on B'l'I's IItuff. STI is not an employment agency and
does not provide employment agency eervices to third parties,
which are JFC's "clients" under the reasonable interpretation of
Exhibit "A" to JFC's petition. Rather, STI provides consulting
services to third parties, with such services being performed by
BTI's permanent staff (which staff is typically constrained from
accepting employment by the third pulies served by STI), On
occasion, JFC has presented candidates to STI for possible hire
by S'I'I.
10. Admitted in part und denied in part,. Mr. l,ynam admits
that STI placed the advertisement attached BS ~xhibit "0" to
JI"C'. I'etition on the date and in the newspaper III alleged by
-4-
JFC, and that Hr. Lynam was instrumental in having that ocour.
Hl", Lynam denies that such advertillement "directly" leekl
olients of JFC. Rather, advertising In printed periodical media
18 not "dil"ect" solicitation, which ordinarily moan8 a
solicitation addressed to an Individual. Mr. INnam also denies
that the advertisement seeke "clients of JfC Associates".
Rather, such clients are the third party employers whom JFC
serves as set forth III Panlgraph 9. above. Mr. I.ynam's respol1se
to Paragraph 11. is incorporated herein by way of lurther
response.
11. Denied. Mr. I,ynam has not solicited any of JFC's
"clients" as that term is defined in Paragraph 9. above. If JFC
means to include within the term "its clients" all possible
oandidates for employment whoso name appears within ,H'C's lists
of candidates, Mr. Lynam denloe that he has solicited any
candidate whose Identity Is confidential Information of JFC 8S
described in Paragraph 6, above. Mr. l.ynam further denies that
the relationship between JFC and the hosl of potential
candidates whose identities are not elCclueively hold by JFC is a
relationship reasonably pro\.eell!ll hy the reotdctivo covonant
(if said covenant ill onforcoaulo, Which Mr. I,ynam denies for
reasons Bot forth above), Mr. Lynnm Ileniue tha\. he hap uBed any
of ,H-C'II conflclentllll InJ'ormat.lon \.0 which ho had IWCfJSII all an
employee of ,1Fe to reach candldatoB. Hather, Mr. Lynam has
contactod only candidates whoso namos appoarod In 6TI's databallo
-5-
before Mr. Lynam came to STI, who responded to STI's media
advertising, or to whom Mr. Lynam was referred by another
candidate, all of which sources are independent of JFC's
confidential information. If the court determines that the
JFC/candidate relationship deserves protection, suoh protection
should be limited to those candidates whose identity is known to
Mr. Lynam solely through his previous access to JFC's lists.
12. Denied. Mr. Lynam has not provided the names of JFC
employees and clients to his new employer, nor, for that matter,
has 6TI requested that he do so.
13. Admitted in part and denied in part. It is admitted
that the quoted language is derived from and is part of
Paragraph 5. of ElChibit "A" to JFC's Petition. Mr. Lynam denies
the applicability of the quoted language to the instant case,
both because of the unenforceability of the covenant as set
forth above and because the quoted language, if enforceable, is
applicable only to "services for any person, firm or corporation
engaged in a competing line ot business with JFC" (emphasis
supplied) per Paragraph 5. of ElChibit "A" to JFC's Petition. As
stated above, 6TI is not an employment agency and is not engaged
in a "competing line of business with JFC".
14. Admitted in part and denied in part. It is admitted
that the language of Paragraph 6. of Exhibit "A" to JFC's
Petition includes the language excerpted by JFC in this
Paragraph. Again, Mr. Lynam denies the enforceability of the
-6-
covenant and this specific language for reasons set forth above.
Furthermore, JFC is not presently engaged in "defending or
comprising (sic) any claim arising out of Lynam's breach of
contraot." Rather, if Mr. Lynam has breached a contract (which
Mr. Lynam denies), JFC, which wrote Exhibit "A" to its Petition,
is now engaged in prosecuting a claim against Mr. Lynam, not in
"defending or comprising (sic)" such claim, and the language to
which reference is made is inapplicable and irrelevant.
15. The allegations of this Paragraph constitute
conclusions of law to which no response is required under the
Rules of civil Procedure. To the elCtent that such allegations
are deemed by the Court to be factual in nature, such
allegations are denied. Rather, for the reasons set forth
above, Mr. Lynam has caused JFC no damage and JFC is entitled to
none of the relief it requests.
16. The allegation of this Paragraph constitutes a
conclusion of law to which no response is required under the
Rules of civil Procedure. To the extent that such allegation is
deemed by the court to be factual in nature, such allegation are
denied. Rather, for the reasons set forth above, Mr. Lynam has
caused JFC no damage and JFC is entitled to none of the relief
it requests.
17. The allegations of this Paragraph constitute
conclusions of law to which no response is required under the
Rules of civil Procedure. 'ro the elCtent that such allegations
-7-
are deemed by the court to be faotual in nature, such
allegations are denied. Rather, if JFC is granted the relief it
seeks, Mr. Lynam will be effectivoly barred from using his
skills in personnel evaluation and placement gained over a
period of more than five years of work in the field, thereby
unnecessarily restricting Mr. Lynam'S liberty, freedom of
elCpression and freedom of association and his ability to
maintain useful and gainful employment for the support of
himself and his family.
(a) As to the specific allegations of Paragraph ~7.(a),
Mr. Lynam denies that JFC has an interest deserving of equitable
protection in relationships with candidates which may be "lost"
by utilization of a source independent of JFC's confidential
information as described above. Rather, if JFC is entitled to
any protection of its relationship with candidates, it is
entitled only to protection against appropriation of JFC's
candidate list, which has not occurred. Furthermore, Mr. Lynam
denies that JFC expended "considerable time, talent and money"
in obtaining its list of candidates. Rather, the list was
compiled by persons which JFC compensated by commissions paid
only for placements obtained, and JFC sustained no material
elCpense in the compilation of the candidate list.
(b) As to the specific allegations of Paragraph 17.(b), it
is beyond comprehension how solicitation of candidates, whether
for permanent or temporary hire, will result in "damage to JFC's
-8-
business reputation". Rather, solicitation in any form absent
derogatory comments about JFC (Which no one has suggested have
been made by any person) has no effect whatsoever on JFC's
business reputation.
(0) As to the epecific allegations of Paragraph 17.(c),
given the absence of consideration for ths restrictive covenant
and that STI is not a competitor of JFC for reasons stated
above, Mr. Lynam is not in breach of said covenant and JFC
stands to suffer no loss by virtue of Mr. Lynam'S actions as an
employee of STI.
WIIERI<:FORE, Respondent Mark E. Lynam respectfully
requests that this Honorable Court deny Petitioner JFC's
Petition For A Preliminary Injunction and all relief requested
therein, to talC all legally talCable fees and costs against
Petitioner JFC Associates, and to grant such othor relief as the
court deoms fair and just under the circumstances.
ich
ID 13 2234
Attorney for Defendant/Respondent
Mark E. Lynam
111 North Lime street
Lancaster PA 17602-2922
(717) 394-7182
Telecopior: (717) 394-7085
Datedl
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9. ThereaOer,l.ynam enlered Inlo the employ of Solullon Technolnglel, IIIC" a
competitor of JrC In Ihe employmentlndullry, In Lemoyne, Cumberlalld COUllty,
10. On or about June 12, 1994, Lynam placed all advertllemllllt wllh thll
Harrllburg Sunday Palrlol Newl, directly leeklng cllenll of 11'(' Alloclntel for hll work with
hll new employer. A Irue nlld correct copy of laid newlpaper ndvertllemellt II 1IIIIIched
herelo, and Incorporaled herein by reference al I!Ahlbll "U",
II. On or about June 13, 1994, JI'C learned from cerlaln of III c1lentl thlllthey
were dlreclly lollclted by Lynam to do work for hll new employer,
12. II II believed, and therefore uverred, Ihllt Lynam hal provldrd Ihe namel of
JPC employeel and cllentllo hll new employer,
13. AI part of Lynam'l conlracl for employment, Uefcndant 1.)'IllIm aUlhorlzed
JFC to Inltltute proceedlngl "In any COUrI of compelent Jurlldlctlon. ellher III law or equity
to obtain damagel for any breach of the llmployee, or to enjolnl!mployee from performing
lervice for any other person during Ihe perlnd herein conlracted for",",
14. Additionally, al pari of the cmployment contracl, Uerendant Lynam agreed
to Indemnify IFC agalnll any damagc, COlli, and eApenlcl, Including rcalonable allOrne)1'
feel Incurred In defending or comprlllng uny claim nrlllng oul of Lynam'l breach of
conlract.
IS, II'C will luffer hnmedlnle and Irrepnrable hnrm fromlhe 1011 of confidential
buslnelllnformatlon and cllcnll, which harm cannol be properly compenlaled by damagel,
If Ihe requellcd relief II nol gran led.
3
16. JFC does not have an adequate remedy allaw.
17. The grant of a preliminary Injuncllon to J FC would result In less harm to
Lynam than the denial of same would result to JFC, In that:
(a). Direct solicitation of J FC conlacts will result In the loss of the
confidenllallty of the names of customers and business patrons of JFC, which
Information JFC has expended considerable time, talent and money In obtaining;
(b), solicitation will result In damage to JFC's business reputation among
potential employees and temporaries: and
(c). conllnued breach of the restrictive covenant by Lynam will dissipate the
effecllveness of any other such covenants, for which valuable consideration have been
given, and upon which JFC depends to retain proprietary and confidenllal
Informallon.
WIIEREFORE I Your Pelltloner JFC respectfully requests that this Honorable
Court provide It relief as follows:
(a) Immediately enjoin Respondent Lynam from soliciting,
accepting, advertising for, or servicing any past or present clients of JFC for
a period of one (I) year following the entry of this Court's Order;
(b) enjoining Respondent Lynam, from making use, directly or
Indlreclly, of any confidenllallnformatlon gained by Defendant Lynam while
an employee of JFC:
4
, JUN, -08' 941WEOI 07: 35
I
p, 007,
"
2. IH,LOYEI acknowledgee ~hlt Jrc will I.t.nd con.iderabl.
i.e, .rtort and ..p.n.. in training EM'LOYI. in the .etbod. u.ed
V Jrc and that IM'LOYII vill acquir. conridential knovl.dve and
ntor.ation a. to Jrc'. account., cu.to.er., and bu.in... patron.,
. v.l1 a. confideDtial knowl.dg. _nd intor.ation cono.rnlDg the
.thod., for.., and contnctl u.ed by JrC, that IlH'LOYI. vUl
aaain .uah ..pulancI that upon l.aving Jrc'. l.ploYII.Dt far any
...on, hi. .nglging dirlctly or indir.ctly, .ithar alan. or iD
..actatian vith .ny oth.r p.r.an or tir. in a .ial1lr bUlin... to
ba, .f Jrc, or to 'bit of a duly luthori..d lie'D'.. of J'C of
.a, lil1/Rlrrl.lIur,/Clrlill,/Lancll'lr/Tork or .., otta.r JrC
nl.., luell IDI.,ealDt vill ,r.l.nt lrn,arallla ban ... UBI..ill
... ,. 3re, .11 of wbieb bin il .ot ..,alll. of ,r..al. .~ ....,
roof or a.leul.tion, '.ploV'" vhil. ift the bir. of Ire or within
1) ... ,..r .ft.r 1.I.i., the hire of Irc will Dot .lr..'I, ,or
..haaU, i..uCl or au..pc to influ..oe Iny ..,10,.. to unin.u
ii or b.r ..,10,.'Dt with Jrc.
3. _"'LOTlI, th.rlfor., Igr.l. thlt hl/.b. vill not vbil. in
rc'. IIploy nor wUbin a puiod of onl (1) y.ar follawin.
.niDlcioD of ..plo,..nt tor aD, GlU.. vhlt.o...r, directly or
..irlccly .n..,. in Iny bu. tn... tor bi...lt/h.r..lt or lot I' In
1.,lOY../I,.nt or b. in II.oailtion iD lay cI,laity witb .ny othlr
I~r.o. or ftra I.,a,.d in I lilillr bu.tn... to J'C'. or l.rwiG"
I
~urr..tly ......d by Jrc witbin . ..vlaty.fiv. ('II .ila radiu. or
I
JUN, -0.8' 941~'EDI 0.7: 34
p, 0.0.3,
.nv clty 1n wh1ch a JFC ottlal 11 located, EMPLOYCC ecknowledven
'that d01n, 10 1n any .anner would lnurtln with, dllturb, dllrupt,
.!Acn... or othlC'''1.. j.opardlZ1 thl budnl" ot Jrc and lU
~.ploy..., nor vill EHPLOYII do Inythll1' which tlndl to take a"ay
IIr dl.1nl.h the tude, bu.l",", or load \/111 at JrC, nor .,111
IIHfLOYII ,1v, to any othn p.non or Ura tbe bene tit or .dunnge
lit Jrc'. ..thod. or tor.., or the knowl.dg., 1nfor..tlon, contact
II...., p..t or pre..nt cUlto.en, and ..perl. no. .cquind by
II..fLonl wbU. ..ployd by Jrc.
t, ...'Lonl a,r... upon t.rainatlon of hl. ..ploya.nt with
~IP(: for "")' rea.on _b.tlalVer, to r.turn to Mr. J.... C:...cIlUi or
.. d..l...t.d ....r....t.tly. of JPC .11 r.cord., ...u.l., o..i.. of
I~...dl ..d p..erl ,ntAiaia, to u.n..oUa.. lII.dl.. Il, ....U>>n.
,'bU. ....dat.. witb nc, .nd in tll. event 1...LOnl ....n r.u to
~I. .., or 11 tta. IVlIlt IM'LOl". .b.U dol.t. thil iDltot
, '
'I.rat.tlt, ..nonl ...aU fur.it .U 01.1.. " UD,I'd oo..U.l...,
atOlu... .nd bt.tUU without .UtcUn, tht ri.llt of Jrc to o..,al
the recurn or ..U r.aardl, p.p.n, .nd ..nu.h.
I.
lath puU.. noovn1a. that thl
..ryiot. to Il. r..d.r.. u.d.r tbi. A.r....nt by tb. '.ploy.. '1"
.,.ai.l, unl.Ut, and or .Itr.ordlnary ob.raot.r, and th.t in tb.
nent d tb. bruab of 3rt of t.nl .nd aanditia"l at tU.
"r.....t to b. ,.rfaral. by bi. or in tb. .v.nt ..,loy.. Ibal1
witbaut tb. wrltten coulnt of Jrc h.". itl ..ployalnt and
,erf.ra, 1. tb. futur., ..rYiae. for any plr.on, fira or
JUN, .08' 94lWEDI 07: 34
P, 004
:
corpor.tion .nt...d in . co.p.lln. lln. o~ bUlln'" vlth JrC, JrC
.h.ll b. .ntlt1.., if it .0 .l.ot., to In.tltut. .nd pro..cut.
proe..din, 1n .ny court at co.plt.nt ,url.41'tlon .ith.r ln 1av or
.quity to olltUn d...... ~or .ny brlloh at the I:.ploy.. or to
.njaln l.p1ay.. Ira. p.rlar.lnt ..rvle. tOf any oth.r p.rlon. tir.
or aorporation, d\lfill, the perio4 hardn GOnn.a"d lor, but
nathlnl b.r.in contaln.4 .a.11 b. con.tru.d to pr.y.nt luch r...d,
ln the oourt., in oa.. 01 'DY br..oh at thi' .tr...nnt bV ..,loy.'
.. JrC .a, .1.ct to invok.,
III adUtion u nc'. rilbt at .otiOIl tor .u.tdlled 4...,11 " ·
br..oh af .ald oov...nf., tll. p.rtl.. h.r.to .,r.. that Jrc will
",v' t", 'lIf'"'' ri,.., u ..fere. t..... oOYlnuU br 1"IIUle
n...ill, .Uola .II.U i.o1l1'" ...", u".r tlll',I, ,.........,
r..tr.l.l., or..r. .n. t....r.rY 'D' ",..a.llt in'"l1otiolll,
U ne ....U Ia. r.,uir" '" ..,U..bll la. to furJltlll . 11.1' t'r
Dt"U IlInt, .. . ....hi." tl till. "'''' d .. i.tlll"il' er
run.1Dill' orll... "d." .I.hr" hr or on 'OOOIlDt of thl
,l01.t10n or th... .aVllllntl, ...10Y.I b,r'bV .,r... tbat IlIcb 1l0D'
_ Dr oth.r ,ur.ty ..y II. ln the ,1ni'u, a.ount a110wabl. by la..
,. 11l....llV, ...10V.. .hln ind"lIlty JrC .,.1I1n II'
d......, ...u, ... ......... helutl111' rllun.bh .norn.,'. r...,
lncurre' iD 4".ldiD, or o...ri.ill' II' dal. ari.ia, lut If
...aOvII.. WII..flll ...lIni.r. filii ""tI.lIlit.r .b.n ..nh. t.bt
t.r.in.ti.n .r thl. Alr....nt.
"
, JUN, -Q8' 941~EDI 07:35
P,006,
7. ~. JrC .hall not b. 11abl. to m.ploy.. for anv
..p.n..M lncurr.d by hil, nor .hall IlploV" b. liab1. to 3rC tar
offic. h.lp or .Kp.nl. Ind the tlploy.. ,hall have no authority to
bind Jrc by any prolill or rlpr...nution, unhu Ip.ciUcaUy
author!l.d in writing to do '0. Bu.1n... relat.d .Kp.n.... luch ..
.il.ag. to and frol . bu. in... r.l't.d function, .hall b.
ral.bur..d to IlploV" on .n ..p.n.. .ocount, .ccording to 11.1t.
'It by .ana,...nt.
I. .ah'f. 'aUure to in.llt upon Itdct co.,lI.nc. with .nv
of th. ,.r.., cov.naat.. or co.dltlo.. b.r.ot .ball not b. d....d
a valv.r oC .uob t.r., oov.naat or oonditio., nor .h.ll .ny waiv.r
or r,l<yl.b...t .t a.r rllbt ot ....r b.r.....r It Iny ... tll'
or ..r. ti... b. d..... a w.lv'r at r.lib,uiah..nt ot .uch rl,ht at
....r It .ay oa. ti.. or ti....
...
t. ~. 'b. invalidity or un.Dforo..bilitr ot anr
~rov1.ion b.raot .b.ll in no way att.ct the v.l1dity or
~nforc"bil1t, ot any oth.r provi.ion.
1.. ~a'41Ic.t19A. rhi. A'r....DI c.nDot b. cbaD,.d, .oditi..
~r di.cb.r,.d orally, but on1, .1 oOD..nt.d to in vritin, by both
.'uti...
It 11 furtb.r underltood that, in tb. .vent at t.t.ination of
..,1,,,,'t tor &D' r".oa, DO OOlli..1oal, boauI'1 or b.n.fit.
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SHERIFF'S DEPARTMENT
!l() "nlHIl OlJt\1 tlllH II I At~CMillll PI W~!iYI VM~IA llhO;1 ",I 11 ~'\l!l.II~I{}O
SHERIFF SERVICE
PROCESS RECEIPT, Ind AFFIDAVIT OF RETURN
~iNflf'IS,
,J FC /\ssoc iates
i'iJtifHU~~ti,~s,
INB 1ntlel10tiS I cm titnvlC[; or I'nOC[S8 1111 tho fUV8'18 ollll.llIt tNo, tI:
61 t;upv III UlIaIII1Il! Plellllt t)'IJII IH IlllnlloglblV On nul detach ,ny copl.. H
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;' I I HIll! r411~illi ii
94-.\270 Civil Term
Mark E. Lynalll
S;VE --{--' .!,-,iM-Ai oj II;(JIVllllJ^i ulMI'^,n (,1l1ll'lll1^llllf. 11('
Mark E. I.Yllillll
'-fi-"ill}Iuiis t!lI11'I" 11;--IHlI ;'1lill11111'111 t~(1 LI'~ 110111 l",p Stith- und Ill' Cmll'l
AT 371 North I\nJ'llill'n Ht., MI. .Ioy, 1'/\
7 INDICAn lJNlJSUAI iH il.VICI 'coM..."" oi I'A XIIJlI'UI'" ollH II C UIll lie 1'1 nnd
_ ~n~_ _~ n - - -_.._--~_.__.~---,-_.-
Now, ..June-11 ,__ .. _ 19 IJ 4 _, I, SHERIFF OF lUlN~" COUNTY. I'A , do horobv.llopullzo Iho 6h
-htln~l!tet"------ ---.- .--'. --.. - - -- .- - County 10 o.oculo IhlB Wr~jJId'r!tl1llurn IhJlteo
10 law, TI1IB uopulollon being n18do ollho roquosl nnd flBk of Iho plnlnl.III .. _d.. . .. ~~~
" ,L Illl!lItJ1 "Olfl,l n
',BPECIAL INITRUCTIONB OR OTHER-iNFORMATiOHTHAT WiiXAiiilr iNEIPEOiTiNO'iERVICE',. n
" '~I'I III Willi Oil U1MI'l AIN1'
Comp 1 il I 11 I 111 Equ i t Y
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NOTt ONLY APPLICABLE ON WRIT OF UECUTION, N,I, WAIVER OF WATCHMAN -- Any depuly .holllllo,ying upon 1lI1111ching o"y plOpolly unde'
wllhln WIll ttley I(!o~e 68me wIthout a walchmAn In cUIlody 01 whomever 'I 10uI111 111 pOIselllluIl811ef notdying ,)"Ion 01 levy Of Rllachmenl. 'W.lhoulliablllly on
the Ilan 01 such deputy Of the &henlllo anv plolllttll helllll\ 1m allY loss, dl!~lf\lcltol1 III lelTltJVn' 01 ony such tlloperty heloro aherilf'8 IBle theleot
UtDNAT't.'IfMl\nl?MP eb"'~i18{'1~1~A1PA~1l AIlVANCE COSTS 10 TEl [PIiONE NUMBER 1'1 OAl[ ~'J LEIl16/16/94
Leonard Tintner 717-236-9377 6-17-94
______.~_.____._..______.__ __ _.___ ..___ ____m.__.____,.____.____ ._~_.__.
12, BEND NOTICE OF SERVICE COPY TO NAME AND AOORE6B aElOW, (Thl. """ mu.1 bl cempl,l,d II nolltl I. 10 b, mlllldl
315 N. Front street, P.O. Box 741, Harrisburg, l'^ 17108
LEONARIl TlNTNEIl, ESg. AT BOS\IELI'-I.Ji!'l.yIlEIl....B~INER (; I'ICr,OLA __
'PACE BELOW FOR USE OF SHERIFF ONL V - DO NOT WRITE BELOW THII LINE
SIGNATURE 01 AlllhOllll'tj leBO DvpulY 01 Cll!rtlUIHllltle "14 OAll' U"!-ClveIJ It! ['IH,ollon.-ltea,lng dale
t 3 I Bcknowtedgll recelJlI ulflle ~rll I
01 complflllll as lI1dl('aletl aIJOYt!
_ ,JYllqll)H~1~_195 ~6.11.9
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16 I hVIl!hy CERTIFY itlll.! RETURN Ihatl IHWl' 1lt!l50'Illllw hvr'o'l'd ~hllYI' It'Yill 1,.,.1(1l'11I1' 1IISUIVllt' II" hhn'o'wllll1 IhwHlIloi" .. ! hllve eleculetJ IIIi fihuWlll11
"nenHHks", tho WilfUl UlIllplaml tlesl 'Itll'll l1fll1W IIH1IVIllllill Ulr;;r;nlly 'OljlOliilu\1l l>le ill lI11' lllj(III'~<; ~11I1""l\ ul)()lj'p or t1rllhl' HllltVldlJltl, (olllllflll)' (:u"
floral1on, elt Hlllwlll;lIH'So; ItlH,rh'd 1li'lll'o'w I)V Ilal\dllllY illRUE and ATtESTED COPY 1lll'Ieol
17 I] I he/ellv fl.rllly ntHl letuIII II NOT rOUND La'l 1111"" j am ,llIiJlIlI! In Inl <Ill' lllU ,r\(lj~',rJlJul I Ilmplll1)' 1 lIIpUtiltlfHl ..It tlAlllt'rt nhove ISee remar"* lJelnwl
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24 Advllru l' Co&IFI 2', Sf!I\lI( I' eosls l;'h t~lIl.\I~ ( l!rl
R76lll 100,00 25,50
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]8 I At ~t41)"'H Ilull fill 111'11:1 1111 6UlRlH 6 nr1lJnr4 blot~A1lJHt I
(JI A\J\thIHlII~J l~lSIHljll AtJlII(J!itl, "IjIJ rilt I
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whioh derivee its inoome by reorultinq and referring oandidates
for employment to third party employers. The third party
employers oompensate JFC for servioos rendered in finding
employees for the thlnl party employera, Ilnd ,Irc llorlves ft11 of
Its Income from the third party employers.
The ovidence will also disclose that ST] Is a company which
provides teohnology oonsulting services to third parties on a
contract basis for dllflned projects. S'I']'s ouetomers are
seeking speoiallzed conSUlting eervlcos, and ST]'s "trade" is to
perform those oonsul ting services itself through the efforts of
its own staff. 61'] prohibita its employees from accepting
employment with ST]'s "customers" (the third parties Ito
servos), some of whom may be JFC's customers from time to time
but for obviously different purposlIs. 81'1 is not nn employment
agenoy, Mr. Lynam Is emploYl1l1 in S'I']'II personnel department.
Corpus Juris Secundum, at l5A C.J.8. 114, states in regard
to the legal meaning of the wonl "compst1t1un", in relevant
partl
More specifically, when used in its commercial
sense, the word implies trade, has been said to have
three elements, price, quality and service, and has
heen defined a8 meaninlJ It cuntest for trade I the
effort of two or moro pltrtles, acting Independently,
to secure the custom of a third party by the offer of
the most favorftbl e termll... the struqgl e hetween ri vals
fur the sftme trade at the same time.
Application of thlR definition warrants a finding that Jrc
ftnd STl are not in competition with one ftnother. SrI's
austumors /I'"e seekinq a "product", namely mmsultlng ssrvluss on
-2-
a project by projeot ba.ts, whtch i. fundamentally different
from the product "sold" by Jf'C. JI'C's ou.tomen are ...king
employee. whioh they will oontrol and dlreot, hire and fire, and
JFC's "trade" Is to find and supply those employees,
It ill rospeoUully oul.Jmitted that Hr. l.ynam, by his
assooiation with t1'I'l, hall not brellohel1 tho restriotive covenant
limiting compotitive aotivity. 'I'he injunctive relief Bought by
JFC is inappropriate and IIhould be denied.
n. It the COijI't finds that; JFC and STI ArI.....1n .o~p""ti Hun!...
.1wliaiU..Jl.WlDtDW.UW1 of t.l1e...l'Datdgt1vv covenant should
result In~findinQLthat InjunotivD teliet Is not
lIarrented.--DL. if dee'" nece.,erY+.JUlQb.-XDllef ....t be
narrOlllY and .peulUwallY__d.:allh to addross only JPC'.
Drotectable.1Dtereeta.
It ie IIxiomatic that 8S a covenant not to compete is
eseentially in reetraint of trade, it must be narrowly
oonstrued. Where a covenant not to compote imposes restriotton.
broader than are necessary to protect the employer, enforcement
of the restrictive covenant will be limited to those portions of
the covenant which are reasonably necessary for the protection
of the employer. Standard Pennsylvania Practice 2d, I 38:27,
tliI1UILRIlIUIlCO,._Y..-AlU:Wl, 465 I'a. 586, )51 ".2d 250 (1976).
JFC's I'etition for" Preliminary Injunction, without over
definlny tho termo "ouulomer" or "oliont" (whioh it appear. to
use interohangeably), BUygOSts to the court that tho restrictive
covenant at Isuue should I~ construed to prohibit "competition"
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with JFC in the form of contacte by Mr. Lynam with anyone who
may heve appeared at any time ae a candidate for employment in
JFC'. data baslit.
Restrlctlvu covenants aru disfavored in the law, and must
be Inturpreted In light 01 the relat.1onl\hlllB they are Intended
to protect. J.l.llm.Q.J.lrYAu1.{;U.V. l;l.l.1n\l_l'f.lBting...,fuUlAU~lliL,
369 A.2d 1164,116" (l'a., 19""). A Hurvey of CUlt.. oonst.rulng
restrictive Cllvllnantll 118 IIPlll1ed to former employoea of
employment agencleH dlBOlosOD that 8 majority of tho oourts
embrace an operatlvo presumption that the relationship de.erving
of protection In equity Is that l.Jetween the employment agenoy
and the third party employeru It serves. only a relatively few
courtu have considered the relationship between the employmont
agency and candldatea for employmunt to be a relationship
deserving of protection, and then only where theru ill a IlpeoUia
prohibition In the restrictive covonant regarding that
relationshl p or deli berate wrongdo I nq I n the form of abuse of
the plalntiff'u proprietary Information by the defondant.
In Gardan,JfAblJLcompany ,~.__!.ll11ltl, 4b2 A.2d 4 (Pa.lluper.,
1982), tho defendants left the plaintiff employment agenov and
set up sn employment agency of their own 1n uompotltlon with the
pili I nU ff awl In brosuh of a covenant. not. to lJompllt. II. The trial
court enjolnec1 tho clofendant.fI ITom pladny, or nttumpt1ng to
placo, oandldates for employment with any company and from
atlemptlng to Ilnd employeeo for any (Jompany with whom tho
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derendants pereonally had dealt while e.ployed hy the pllintier.
ld, It 6. Of li9nificance to the inltlnt oae., the trial
ouurt'l injunotlon did not prohlllit oontaut with olndidltu for
umploy.ent, nor did It l.llCtond to the third party employers
served by the plaintiff with whum thu dufundanto had no personal
contllllt during thoh tonuru with tho plainUt f, 'I'he !luperlor
Court reviewed the injunctiun upun th~ defendante' appeal, which
argued that tho injunctiun wall overly broad becauBe it reaohed
any oUlltomers with whom the IlefendllntR had dealinlJs as lung aa
twelve yoau past. 'rhe Court found that the injunction wu not
overly broad as written, streBslng the importance of the
perlonal relationship between the defendantu and the plaintiff's
third party employer customers and putontial customerB.
Other representative caBeB which bear on this point are
llsted bulow. In aach of those GaBOR, the faot of "competition"
between tho plaintiff former employer and the defenlSant ell-
employee was eBtablished at trial. The calles lire aB followl.
I, I.l1Jitfln..J:w:.PQUtiwl..Y....-tl.WlIlIIIlrB, 514 t'./Jupp. 395 (Il,or.,
1982). ("Prntoctable interest" of plaintiff employment agency
found in rolationship with customllrOl term "customol'ls" all used
refers to thinS plll'ty employorll, not fJllndidates for employment.)
2. V iul.ll1' 'fumvunry Ihl.rV il.:(l1I V I .ulAU.u.ry, 4112 N, Y . B. :ad
623 (A.Il. 4 IIOpt., 1\1/14). (l'hlllUfl employment. llyenoy'll
"oustomers" uood in sense of "bulIlnessea (defendant) had comB to
know and had provlously daftlt with while working lor tlul
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plaintiff". 1d, at 624.)
J. Diversified ~uman Resources Group. Inc., v. LevinBon-
pol.kef!, 752 B.W.2d 8 (TelC.App.-Dallas, 1988). (Covenant which
prohibited defendant from working in any oapacity as a reoruiter
found to prohibit 0 larger scopo of octivity than is reasonably
necessary to protect plaintiff ond is unenforceoble without
reforqation. Id, at 11.)
4. lillUonal RecrultJlrli... .lllih._y---Cashman, 323 N. W. 2d 736
(Hinn., 1982)1 (Restrictive covenant found unenforceable for
lack of consideration. '1'he trial court found that the
"legitimate needs of plaintiff, if any, are (1) for protection
against employees taking applicants who are about to be placed
with them when they leave plaintiff to go into competition with
it 1 and (2) for protection against employees taking plaintiff 's
current files, lists, and job orders, or copies thereof, with
them when they leave plaintiff to go into competition with it.
Id, at 740.)
5. ~tury Personnel. Inc.. v. Brummett, 499 N.E.2d 1160
(Ind.App. 1 Diat., 1986) (Contact by defendant with an
applicant, i.e., a candidate, waB considered by the trial courtl
however, the trial court alBO considered that the defendant
lel:lrned of job openings which he Bought to fi 11, in competition
with the plaintiff, through newspaper advertisements. Under the
circumstances, the trial court refused to grant a preliminary
injunction because no harm to the former employer was found.
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The trial court's decision was sustained on appeal.)
6. Management Recruiters of Boulder. Inc. v. Miller, 762
P.2d 763 (colo.App., 1988). (Information regarding "candidates"
derivod from plaintiff's rocords is subject to protection as a
trade secret. In this case, the restrictive covenant
specifically refurred to both "candidates" and "employer-
clients". )
In each of these cases, the courts were concerned with
balancing the narrowly defined interest of the employer with the
pUblic policy against restraint of trade. The courtu sought to
find the actual interests of the plaintiffs which deserved
protection, and then fashioned relief which restrained the
defendants in the least restrictive manner possible consistent
with the narrowly defined interests of the employer. All of the
courts accepted as given the plaintiff'S legitimate, although
limited, interest in protecting its relationships with eKisting
third party employer "customers" or "clients" from competition
from employees who left for other employment agencies, The
Gordon Wahls Company case, supra, is the only Pennsylvania
authority found, and it supports a norrowly drawn limitation on
contacts by the defendont former employee with the plaintiff'S
third party employer "customers" only.
In his former position with JFC, Mr. Lynam had daily
contact with JFC's "customer" third party employers. In his
current position with STI, Mr. Lynam has no contact whatsoever
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with STI's oustomers, the third parties for whom STI provides
oonsultation servioes, nor has he any oontact whatsoever with
JFC's "customers". As such, there has been no breach of the
restrict! ve covenant, and the injunoti ve relief requested by JFC
is unwarranted.
Furthermore, the evidence will show that Mr. Lynam's
contacts with candidates on behalf of STI were derived from
sources independent of JFC's candidate lists. These sources
consist of responses to media advertising, resort to STI's data
base as it elCisted at the time of Mr. Lynam's hire by STI, and
direct referrals by one candidate to another candidate. None of
Mr. Lynam's contacts with candidates or contacts with candidates
by other STI recruiters originated with information which is
arguably proprietary to JFC,
JFC would ask this Court to construe the restrictive
covenant to prohibit Mr. Lynam from working as a recruiter for
STI where a strained interpretation is required to find
competition, where there had been no contact by Mr. Lynam with
the protected claBS of third party employer "customers" of JFC,
and where there no proof that protectable trade secrets have
been utilized to JFC's detriment. It is respectfully submitted
that under all of the evidence JFC fails to sustain the burden
of proof which would entitle it to the elCtraordinary equitable
remedies JFC requests.
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employ..., rather, Hr. Lynam'. duties were limited to working
with third party employers and candidate. for full time
employment by the third party employers. The balance of ths
allegations of this Paragraph are admltted.
6. Admitted in part and denied in part. Mr. Lynam admits
that Mr. Lynam'S position gave him access to JFC's lists of
prospective employees. Such access did not amount to
"posseBsion", as Mr. Lynam did not have the ability to print
Buch lists and such lists consisted of thousands of names. The
allegation that such information is "con1'idential information",
as that suggestion is a legal conclusion to be determined by the
Court. By way of further answer and explanation, many of the
names appearing in JFC's lists of prospective employees
(referred to hereinafter ae "candidatee") also appear in lists
maintained by other employment agencies and by prospective
employers. While a candidate's name on the JFC list is
potentially confidential (where JFC's liet is the only source of
the identity of the candidate) in isolated inetances, more
typically candidates submit their resumes and other information
to numerous employment agencios and/or prospective employsrs, or
such names come to the attention of employment agencies and/or
prospective employere by way of the candidate's response to
media advertising or by way of personal referral by other
candidates. utilization of these sources which are independent
of JFC's list is not a use of confidential information
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proprietary to JFC. A. to JFC'. allegation regarding Hr.
Lynam'. acce.. to "other confidential information proprietary to
Jrc", without further specification as to the nature of such
information Mr. Lynam i. unable to answer such allegation as he
lack. sufficient knowledge or information to form a belief ae to
its truth. Such allegation is therefore denied.
7. Admitted in part and denied in part. Mr. Lynam admit.
that the 4uoted text is an accurate excerpt from Paragraph J. of
Exhibit "A" to JFC's Petition. Mr. Lynam denies that the quoted
excerpt binds him. Rather, the "restrictive covenant" is void
and unenforceable due to JFC's failure to deliver the
consideration mentioned in Paragraph 2. of Exhibit "A" to JPC's
Petition, specifically in that JFC did not "extend considerable
time, effort and expense" in training Mr. Lynam. Rather, Mr.
Lynam received no training from JFC and any "on the job" self-
training was at no material expense to JFC, as JFC compensated
Hr. Lynam on a commission only basis. Furthermore, as JPC seek.
to apply the covenant not to compete, the covenant is overly
broad and not reasonably related to the protection of JFC's
interest in its relationships with JFC's clients, namely, the
third party employers which JFC servee and from which JFC
derives ite income.
8. Admitted in part and denied in part. Mr. Lynam admit.
that he terminated his employment with Jrc. Such termination
occurred on June 2, 1994, and not on June 10, 1994, as stated in
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JFC'. Petition.
9. Admitted in part and denied in part. Hr. Lynam admit.
that he entered into the employ of Solution Technologies, Inc.,
(hereinafter called "STI") which ie located in Lemoyne,
cumberland County, and did so on June 6, 1994. Mr. Lynam
.pecitically denies that STI is a competitor of JFC in the
employment industry. JFC ie an employment agency. JFC is
contracted by third parties to identify and refer candidate. for
potential hire as employees by such third parties. The third
partiee compensate JFC for its eervices as the third parties'
agent, end the third parties are JFC's "clients" or "customers".
Mr. Lynam now works in ths personnel department of STI, where
hie job is to interview end evaluate potential candidates for
employment on STI's staff. STI is not an employment aqency and
doe. not provide employment agency services to third partie.,
which are JPC's "clients" under the reasonable interpretation of
Exhibit "A" to JFC's petition. Rather, STI provides conaulting
.ervice. to third parties, with such services being performed by
STI's permanent staff (which staff ie typically constrained from
accepting employment by tho third partiee served by STI). On
occasion, JFC hae presented candidates to STI for poasible hire
by BTI.
10. Admitted in part and denied in part. Mr. I~nam admit.
that STI placed the advertisement attached as Exhibit "h" to
JFC's Petition on the date and in the newepaper as allaged by
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JFC, and that Hr. Lynam wa. instrumental in having that occur.
Hr. Lynam d.n!e. that luch advertisement "directly" seeks
cUentll of JFC. Rather, advertieinq in printed periodioal media
is not "direct" solicitation, which ordinarily means a
solioitation addressed to an individual. Mr. Lynam also denies
that the advertisement seeks "clients of JfC Associates".
Rather, such clients are the third party employers whom JFC
..rves as set forth in Paragraph Y. above. Mr. Lynam'S response
to Paragraph 11. is incorporated herein by way of further
re.ponss.
11. Oenied. Mr. Lynam has not solicited any of JFC's
"clients" as that term is defined in Paragraph Y. above. If JFC
means to include within the term "its cliente" all possible
candidates for employment whose name appeara within JFC's lilts
of candidate., Mr. Lynam denies that he has eolicited any
candidate whoso identity is confidential information of JFC as
described in paragraph 6. above. Ml-. Lynam further denie. that
the relationship between JFC and the host of potential
candidates whose identities are not exclusively held by JFC is a
relationship reasonably protected by the restrictive covenant
(if said covenant is enforceable, which Mr. Lynam denies for
rellsons set forth above). Mr. l,ynam deniee that he has ulI8d any
of ,lYC's confidential information to whidl he had accees aa an
employee of JfC to reach candidates. Hather, Mr. I.ynam haa
contacted only candidates whose names appeared in BTI's database
-5-
berore Hr. Lynam oame to STI, who reeponded to STI'. media
advertieing, or to whom Mr. Lynam was referred by another
candidate, all of which sources are independent of JFC's
confidential information. If the Court determines that the
JFc/candidate rolationship deserves protection, such protection
ehould be limited to those candidates whoee identity ill known to
Mr. Lynam solely through his previoue accese to JFC's lists.
12. Denied. Mr. Lynam has not provided the names of JFC
employees and clients to his new employer, nor, for that matter,
has STr requeBted that he do BO.
lJ. Admitted in part and denied in part. It is admitted
that the quoted language is derived from and is part of
Paragraph 5. of Exhibit "A" to JPC's Petition. Mr. I,ynam denies
the applicability of the quoted language to the instant case,
both because of the unenforceability of the covenant as .at
forth above and because the quoted language, if enforceable, is
applicable only to "services for any person, firm or corporation
engaged in a competing line of busineee with Jrc" (emphaeis
supplied) per Paragraph 5. of Exhibit "A" to JFC's Petition. As
atated above, STI is not an employment agency and ie not engaged
in a "competing line of bUlinese with JFC".
14. Admitted In part and denied in part. It is admitted
that the language of Paragraph 6. of Exhibit "A" to JFC's
Petition includes the language excerpted by JFC in this
Paragraph. Again, Mr. Lynam denies the enforceability of the
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I
I
1
j
j
I
covenant and this specific l.n~ua;e for reasons .et forth above.
Furthermore, JFC is not presentlY engaged in "defending or
compriaing (aic) any claim arising out of Lynam's breach of
contract." Rather, if Mr. Lynam haa breached a contract (Which
Hr. Lynam denies) I Jf'C, which wrote Exhibit "A" to its Petition,
is now engaged in prosecuting a claim against Mr. Lynam, not in
"defending or comprising (sic)" such claim, and the language to
which reference is made is inapplicable and irrelevant.
15. The allegations of this paragraph constitute
conclusions of law to which no response is required un~er the
Rules of civil procedure. To the extent that such allegations
are deemed by the court to be factual in nature, such
alle~ations are denied. Rather, for the reasons set forth
above, Hr. Lynam has cliUlled JFC no damage and JFC is entitled to
none of the relief it requests.
16. The allegation of this paragraph constitutes a
conclusion of law to which no response is required under the
Rules of civil Procedure. To tlle extent that such allegation is
deemed by the court to be factual in natul'e, such allegation are
denied. Rather, for the reasons set forth above, Mr. Lynam has
caused Jt.C no damage and JFC ill entitled to none of the relief
it requests.
17. 'I'he allegations of this Paragraph constitute
conclusione of law to which no responee is required under the
Rules of civil Procedure. To the extent that such allegations
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are deemed by the court to be faotual in nature, 8uch
alle9atione are denied. Rather, if JFC i. granted the relief it
..eke, Hr. Lynam will be effectively barred from using hie
.kills in personnel evaluation and placement gained over a
period of more than five years of work in the field, thereby
unneceBurily restricting Mr. Lynam'e liberty, freedom of
Bxpression and freedom of association and his ability to
maintain useful and gainful employment for the support of
himself and his family.
(a) As to the specific allegatione of Paragraph ~7.(a),
Mr. Lynam deniee that JFC has an interest deserving of equitable
protection in relationships with candidates which may be "lost"
by utilization of a source independent of JFC's confidential
information as deecribed above. Rather, if JFC is entitled to
any protection of its relationship with candidates, it is
entitled only to protection against appropriation of JFC's
candidate list, which has not occurred. Furthermore, Mr. Lynam
denies that JFC expended "considerable time, talent and money"
in obtaining its list of candidatee. Rather, the list was
compiled by perllone which JFC compensated by commissions paid
only for placements obtained, and JFC sustained no material
expense in the compilation of the candidate list.
(b) As to the specific allegations of Paragraph 17.(b), it
is beyond comprehension how solicitation of candidates, whether
for permanent or temporary hiro, will result in "damage to JFC's
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