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HomeMy WebLinkAbout02-3594ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation Plaintiff CHARLA lC BISHOP, an individual Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. - 2002 -..~=~c{ G~C CIVIL ACTION - EQUITY RULE ANDNOW, this ]~, ~-~ dayof ~-t~\'~ ,2002, upon consideration ofthe verified Complaint in Equity in this action and the accompanying Petition for Preliminary Injunctive Relief, it is hereby ORDERED that: 1. Defendant show cause before this Court on ~gE~~'~9, 2002, at o'clock ~ .m., in Courtroom No. ! at the Cumberland County Courthouse, Carlisle, Pennsylvania, why a Preliminary Injunction should not be issued, providing the relief requested by Plaintiff; and 2. Plaintiff cause copies of this Rule to Show Cause, the Complaint in Equity, and the Petition for Injunctive Relief to be served upon Defendant. Philip J. Murren, Esq. Charla K. Bishop 2303 Market Street 284 Fredericksburg Road Camp Hill, PA 17011 Jonestown, PA 17038 Attorney for Plaintiff ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation Plaintiff Vo CHARLA K. BISHOP, an individual Defendant : IN THE COURT OF COMMON PLEAS : : : CUMBERLAND COUNTY, PENNSYLVANIA _, .. : NO. -2002 : CIVIL ACTION - EQUITY .. .. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 Attomey Referral Service 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 or 1-(800) 990-9108 ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation Plaintiff Vo CHARLA K. BISHOP, an individual Defendant : IN THE COURT OF COMMON PLEAS : : : CUMBERLAND COUNTY, PENNSYLVANIA .. .. : NO. -2002 ~ --~3~/ : CIVIL ACTION - EQUITY _, COMPLAINT 1. Plaintiff, Elite Staffing Service,s,,. Inc., fo,,rmerly _k~,,own as Capit,~, Area Temporary Services, Inc., (hereinafter referred to as Plaintiff and/or Elite Staffing ), is a Pennsylvania corporation with its principal place of business at 839 Market Street, Lemoyne, PA 17043. 2. Defendant Charla K. Bishop, is an individual residing at 284 Fredericksburg Road, Jonestown, PA 17038. 3. Choice Nursing, Inc., is a Pennsylvania corporation with its principal place of business at 3514 Trindle Road, Camp Hill, PA 17011. 4. Plaintiff is in the business of providing temporary staffing and employment services to a variety of business entities and organizations. 5. Plaintif£s business consists of several divisions, one of which is the Elite Medical Staffing Division that provides temporary registered nurses, licensed practical nurses, certified nurses aides, nurses aides, and home health aides to hospitals, nursing homes, rehabilitation facilities, agencies, and other medical facilities. 6. In °rder to sell its services, Plaintiff contacts hospitals, nursing homes, rehabilitation facilities, agencies, and other medical facilities (hereinafter "medical facilities") to encourage them to contract with Plaintiff to provide their staffing needs. 7. Maria T°dar°-McGuire was formerly employed by plaintiffas the Director of Operations for the Elite Medical Staffing Division until the elimination of her position on April 15, 2002, which date she ceased employment with Plaintiff. on 8. Maria Todaro-McGuire is currently the Chief Executive Officer of Choice Nursing, inc. 9. On May 15, 2001, Plaintiff and Defendant entered into an employment agreement (hereinafter "Agreement"). A tree and correct copy is attached as Exhibit 1. 10 Paragraph 3 of the Agreement -- Files, Records and Data" -- states: It is understood and agreed hereto that the names, addresses, files, job orders, forms, pricing, records and other salient business data of the applicants and client companies of Employer constitute a valuable asset of Employer and are trade secrets of the Employer. In the event that Employee's employment relationship with Employer shall be terminated, whether voluntarily or involuntarily, Employee agrees that he or she will keep confidential such information; that he or she will not attempt to benefit personally in any way from the disclosure of any such names, addresses or other salient business data of Employer's client to any competitor of Employer and, that he or she will not make any effort, directly or indirectly, on his or her behalf or on behalf of any other person or business entity to encourage any of said clients of Employer to withhold their patronage from Employer. It is further understood that no files, records, or other salient business data of Employer shall be removed from the offices of Employer without the express prior consent of Employer. 11. Paragraph 7 of the Agreement " · · ,, -- Restrictive Covenant -- states: Employee does hereby expressly covenant, promise and agree that during the term of his or her employment and for a period of one (1) year he or she shall not, either in principal or on behalf of, or in conjunction with, any other person, firm, partnership, company or corporation, either as an agent, employee, partner, officer, director, consultant or any other capacity, directly or indirectly, within a radius of (50] miles from any of the mployer s offices, do any of the following: A. Employee shall not engage in the employment service or temporary help business in competition with the Employer. B. Employee agrees that he or she shall not solicit or contact any of Employer's clients with whom he or she dealt during the employment relationship. C. Employee agrees that he or she shall not solicit, divert, or take away potential applicants or client companies of Employer within said fifty (50) mile radius, of any of the Employer's offices for the period of one (1) year from the termination of his or her employment. 12. Defendant was, during the period of May 15, 2001, to April 16, 2002, employed by Plaintiff as Regional Marketing Representative. 13. As Regional Marketing Representative, Defendant was responsible for maintaining current clients through quality assurance checks, while continuously identifying new and additional needs, as well as identifying new areas of business service that could be offered to the community for the purposes of developing new client relationships. 14. Defendant began to work exclusively for Plaintiffas Regional Marketing Representative on May 15, 2001 and reported directly to Maria Todaro-McGuire. 2 15. Defendant Bishop, in her employment status with Plaintiff, was assigned to the Elite/v~edical Staffing Division for which she was responsible for establishing new relationships and for maintaining existing relationships with medical facilities throughout central Pennsylvania. 16. In her capacity as Regional Marketing Representative, Defendant had access to and used the infomaation compiled by Plaintiffregarding its business relationships with client medical facilities including the names, addresses, files, job orders, forms, pricing, records and other salient business data of its clients and its temporary staffing applicants. 17. Plaintiff has spent considerable time, effort and money in compiling this information and deems that information to be proprietary in nature. This information is not of a type of information that is generally available to the public or others in the industry. 18. Defendant's position as Regional Marketing Representative was eliminated on April 16, 2002, and her employment with Plaintiff ended on that day. 19. Upon information and belief, Plaintiff determined that Defendant, after leaving Elite Staffing, began an employment and/or business relationship with Choice Nursing. Inc. Attached as Exhibit 2 is the June 30, 2002, Patriot-News classified advertisement of~)efendant Choice Nursing, Inc. 20. It is alleged that, due to Defendant's former employment position with Plaintiff, Defendant has obtained access to this confidential information and has used that information to advance her own business interests in contravention of Defendant's written Employment Agreement and in disregard of the confidential nature of Plaintiff's business activities. 21. Plaintiff believes, and therefore avers, that Defendant continues to utilize this information thereby ' · causing irreparable harm and continuing damage to Plaintiff's business. 22. It is believed, and therefore averred, that Defendant has been utilizing Plaintiffs confidential information, in part, to contact existing employees of Elite Staffing in an attempt to have them work for Choice Nursing, Inc., in direct violation of Paragraphs 3 and 7 of the Agreement. 23. It is believed, and therefore averred, that Defendant has been soliciting business from many of the medical facilities with whom Plaintiffhas an established relationship, in direct violation of Paragraph 7 of the Employment Agreement between Defendant and Plaintiff. 24. On July I, 2002, Plaintiff's counsel sent a letter to Defendant asking that she "cease and desist" her conduct which violates the terms of the Agreement. Plaintiff sent the letter and a copy of the Agreement to Defendant via certified mail. A true and correct copy of the letter is attached as Exhibit 3. 25. Plaintiffs "cease and desist" letter stated that if Defendant believed that she was not in violation of the Agreement that she immediately contact Plaintiff with a complete statement of assurances to that effect. ' 26. Tb date, Defendant has made no effort ' ' to contact Plaintiff nor has Defendant provided 'any assurances that she is not in violation of the terms of the Agreement. 27. On July 1, 2002, Plaintiff's counsel also sent a letter to Choice Nursing, Inc., via certified mail, notifying the business that Defendant Bishop had an employment agreement with Plaintiffthat prohibited her from competing with Elite Staffing. Enclosed with this letter were copies of the Agreement and the "cease and desist" letter sent to Defendant. A true and correct copy of the letter sent to Defendant Choice Nursing, Inc., is attached as Exhibit 4. 28. Defendant has purposely engaged in a course of conduct, in violation of the Employment Agreement between Defendant and Plaintiff, to unfairly compete against Plaintiff and to destroy its business by intentionally interfering with Plaintiff's established relationships with medical facilities and its prospective relationships, in an effort to have those medical facilities break their existing or prospective relationships with Plaintiff and forge new relationships with Defendant and/or Choice Nursing, Inc., and, upon belief, by taking and using confidential and proprietary information of Plaintiff. 29. Each day brings additional unlawful acts by Defendant and additional harm to Plaintiff. Indeed, Plaintiff believes that Defendant is continuing her wrongful course of conduct and, absent relief from this Court, that unlawful conduct will continue. 30. Plaintiff cannot be fully compensated by money damages and therefore has no adequate remedy at law. 31. In contrast, Defendant will not suffer any appreciable injury if the Court grants the requested relief. Rather, the injunction will maintain the status quo in this matter, i.e., preventing Defendant from continuing her unlawful and harmful conduct, and holding her to the terms of the Employment Agreement between Defendant and Plaintiff. _Count I. Breach of Contract (Covenant Not to Compete) 32. Plaintiff incorporates paragraphs 1 through 31 of this Complaint as if fully set forth herein. 33. The Employment Agreement prohibits Defendant, for a period of one (1) year from the date of the termination of her employment with Plaintiff, from working for any competitor of Plaintiff within a fifty (50) mile radius of any of Plaintiffs offices. 34. For her own benefit and for the benefit of Choice Nursing, Inc., Defendant has violated, and continues to violate, the terms of the Agreement by working for Choice Nursing, Inc. 35. Plaintiff has suffered, and continues to suffer, damages on account of Defendant Bishop's breach. 36. Plaintiffwill be irreparably harmed if Defendant is not enjoined immediately from violating the provisions of the Agreement. Irreparable harm includes, but is not limited to, loss of good will, customer relationships, and sales and prospective sales that cannot be readily calculated or ascertained. 4 ' 37. Pfaintifflacks an adequate remedy at law io be compensated fully for the violations described herein above. : WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor, award attorneys fees and costs and such other equitable relief and money damages as deemed appropriate, and enjoin Defendant, and those persons in active concert or participation with Defendant, fi.om: a) Being involved in the operation of Choice Nursing, Inc., to the extent that it competes with the Plaintiff within the geographic territory and during the time period as set forth in Paragraph 7 of the Employment Agreement between Plaintiff and Defendant; and b) Engaging in the business of employment staffing services and/or temporary employment staffing services within the geographic territory and during the time period as set forth in Paragraph 7 of the Employment Agreement between Plaintiff and Defendant. Count IL Breach of Contract Solicitation of Medical Facilities 38. Plaintiff incorporates paragraphs 1 through 37 of its Complaint as if fully set forth herein. 39. Thc Agreement in Paragraph 3 prohibits Defendant from using confidential information and documents of Plaintiff to solicit medical facilities with whom Plaintiff has a client relationship. 40. It is believed, and therefore averred that, Defendant, for her own benefit and for the benefit of Choice Nursing, Inc., has violated, and continues to violate, the terms of the Agreement by directly or indirectly soliciting clients of Plaintiff, on behalf of Choice Nursing, Inc., through the use of confidential information and documents of Plaintiff. 41. Plaintiffhas suffered, and continues to suffer, damages on account of Defendant's breach. 42. Plaintiff will be irreparably harmed if Defendant is not enjoined immediately fi.om violating the provisions of the Agreement. The irreparable harm inchides, but is not limited to, loss of good will, customer relationships, and sales and prospective sales which cannot be readily calculated or ascertained. 43. Plaintiff lacks an adequate remedy at law to be compensated fully for the violations described herein above. 5 ' WHEREFORE, Plaintiff respectfully requests'that this Court enter judgment in its ~'avor, award attorneys fees and costs and such other equitable relief and money damages as deemed appropriate, and enjoin Defendant, and those persons in active concert or participation with Defendant, from: a) Using' discl°sing, publishing or reproducing any of Plaintiff, s confidential or propriety information, directly or indirectly; b) Contacting, communicating with or soliciting, directly or indirectly, any medical facilities with whom Defendant Bishop had any contact during her employment with Plaintiff, or other medical facilities or prospective medical facilities whose identities Defendant Bishop learned during or through her employment or contractual relationship with Plaintiff, except by express written permission of Plaintiff. Count III. Breach of Contract se and Disclosure of Confidential Information 44. Plaintiff incorporates paragraphs 1 through 43 of its Complaint as if fully set forth herein. 45. The Agreement prohibits Defendant from disclosing, communicating or divulging trade secrets and · · other confidential information and documents. 46. It is believed, and therefore averred, that Defendant, for her own benefit and for the benefit of Choice Nursing, Inc., has violated, and continues to violate, the terms of the Agreement by using or disclosing, communicating or divulging confidential information to Choice Nursing, Inc., including but not limited to applicants, soliciting current or former temporary employees and 47. Plaintiff has suffered, and continues to suffer, damages on account of Defendant's breach. 48. Plaintiff will be irreparably harmed if Defendant is not enjoined immediatel the provisions of the Am-e ~,,, ,v~,~: ...... . y from violatin o. em .....--,~ meparame harm mc~udes, but is not limited to, loss ogf good will, customer relationships, and sales and prospective sales which cannot be readily calculated or ascertained. 49. Plaintiff lacks an adequate remedy at law to be compensated fully for the violations described herein above. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor, award attorneys fees and costs and such other equitable relief and money damages as deemed appropriate, and enjoin Defendant, and those persons in active concert or participation with Defendant, from: 6 a) Using, disclosing, publishing o~ reproducing any of Plaintiff's confidential br propriety information, directly or indirectly; and b) Contacting, communicating with or soliciting, directly or indirectly, any temporary employees and/or applicants of Plaintiff with whom Defendant had any contact during her employment with Plaintiff, or other temporary employees and/or applicants whose identities Defendant learned during or through her employment or contractual relationship with Plaintiff, except by express written permission of Plaintiff. .Count IV. Tortious Interference with Contractual and Business Relationship:: 50. Plaintiff incorporates paragraphs 1- 49 of its Complaint as if fully set forth herein. 51. Plaintiffhas business relationships with various medical facilities in Pennsylvania. As set forth above, Defendant, by and through her employment and/or business relationship with Choice Nursing, Inc., is in direct competition with Plaintiff and Defendant is aware of Plaintiffs business relations. 52. Through her actions which are set forth above, Defendant, for her own benefit and for the benefit of Choice Nursing, Inc., willfully and knowingly interfered with and is continuing to interfere with Plaintiffs business relationships. Defendant's actions are without privilege or justification. 53. Defendant's interference with Plaintiff's business relations is improper and calculated to cause damage to Plaintiff. 54. As a proximate result of Defendant's actions, Plaintiff already has suffered and will continue to suffer damages. 55. By Defendant's knowing, willful and/or malicious actions, Defendant is liable for punitive damages. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor, award attorneys fees and costs and such other equitable relief and money damages as deemed appropriate, and enjoin Defendant, and those persons in active concert or participation with Defendant, from: a) Interfering with or soliciting, directly or indirectly, in any fashion, any of Plaintiff's clients or business relationships; 7 b) Contacting, communicating wi~h or sohciting, directly or indirectly, any me'dical facilities with whom Defendant had any contact during her employment with Plaintiff, or other medical facilities or prospective medical facilities whose identities Defendant learned during or through her employment or contractual relationship with Plaintiff, except by express written permission of Plaintiff; and c) Accepting business from medical facilities with whom Plaintiff has or had a relationship, directly or indirectly, except by express written consent of Plaintiff. Count V. Misappropriation of Trade Secret~ 56. Plaintiff incorporates paragraphs 1-55 of its Complaint as if fully set forth herein. 57. As set forth above, it is believed, and therefore averred, that Defendant knowingly, wrongfully, and intentionally utilized confidential and proprietary information of Plaintiff. Upon belief, Defendant, for her own benefit and for the benefit of Choice Nursing, Inc., is continuing to utilize confidential and proprietary information of Plaintiff. 58. As a result of Defendant's knowing and wrongful acts, Plaintiff has sustained, and continues to sustain, significant damages. 59. By Defendant's knowing, willful and/or malicious actions, Defendant is also liable for punitive damages. WHEREFORE, Plaintiffrequests that this Court enter judgment in its favor and award attorneys fees and costs and such other equitable relief and money damages as deemed appropriate, and enjoin Defendant, and those persons in active concert or participation with Defendant, from using, disclosingl publishing or reproducing any of Plaintiff's confidential or propriety information, as set forth in Paragraph 3 of the Employment Agreement between Plaintiff and Defendant, directly or indirectly. DATE: BALL, MURREN & CONNELL I.D. No. 21426 Thomas A. Capper, Esquire I.D. No. 75020 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, JAMES A. DIAMOND, hereby certify that I have this date served the foregoing Reply to Plaintiff's New Matter and Affirmative Defenses to Defendant's Counterclaim upon the follow- ing by depositing a copy of the same in the United States Mail, first class postage prepaid, ad- dressed as follows: Philip J. Murren, Esquire Thomas A. Capper, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 Dated: September 11, 2002 S A. DIAMOND, ESQUIRE Exhibit 1 CAPITAL AREA TEMPORARY SERVICE 839 MARKET STREET LEMOYNE, PA 17043 EMPLOYMENTAGREEMENT This agreement made this ., ~ day of Z~ , 20~/, between CAPITAL AREA TEMPORARY SERVICE, a PennsylVania Company (hereinafter referred to as the "Employer'9, and _~7~ r/~ ~ oH (hereinafter referred to as the "Employee '9 and ' ' WHEREAS, Employer desires to promote the growth of Employee for the mutual benefit of Employer and Employee by insuring against unfair competition by any one or more of employees of Employer whose employment relationship may cease; and WHEREAS, Employer desire to more fully set forth the terms of the employment relationship for the benefit of both the Employer and Employee. NOW, THEREFORE, in consideration of the foregoing, Employer and Employee agree as follows: Employer shall hire Employee and Employee shall serve Employer in capacity of Regional Marketing Representative. Employee shall perform as an Regional Marketing Representative for and on behalf of the Employer by performing certain duties including but not limited to those duties enumerated on Exhibit "A ", attached hereto, which shall be called the Job Description. This Job Description may be modified from time to time by the Employer so long as those modifications relate to the performance of duties as an Regional Marketing Representative. HOUR,q Employee shall be required to work on a five day calendar week between the hours of 8:00 a.m. to 5:00p. m. Eastern Standard l~me at a location to be selected by Employer. FILES. RECORDS AND DA It is understood and agreed hereto that the names, addresses, files, job orders, forms, pricing, records and other salient business dati~ of the applicants and client companies of Employer constitute a valuable asset of Employer and are trade secrets of the Employer. In the event that Employee's employment relationship with Employer shall be terminated, whether voluntarily or involuntarily, Employee agrees that he or she will keep confidential such information; that he or she will not attempt to benefit personally in any way from the disclosure of any such information relating to said clients; that he or she will not sell, give or disclose an), such names, addresses or other salient business data of Employer's client to any competitor of Employer and, that he or she will not make any effort, directly or indirectly, on his or her behalf or on the behalf of any other person or business entity to encourage any of said clients of Employer to withhold their patronage from Employer. It is further understood that no files, records, or other salient business data of Employer shall be removed from the offices of Employer without the express prior consent of Employer. Employer shall be responsible for providing training at its own expense to the benefit of Employee in order that he or she may improve his or her skills as an Regional Marketing Representative. The amount of said training, the location of said training and the extent of such training shall be at the discretion of Employer. FA CILITIE,~ Employer shall be responsible for providing all facilities necessary for the performance of duties as an Regional Marketing Representative. PROBATIONARY PERIOD Employer and Employee acknowledge that the first ninety (90) days of the Employment Agreement shall constitute what is known as a "Probationary Period". At the conclusion of said probationary period, Employer shall have the right to retain or discharge Employee with or without cause. Employer further reserves the right to terminate any time thereafter an employee not fully complying with his or her job description and duties as directed, or any reasons listed under paragraph eleven (11), Termination. RESTRICTIVE~ COVENANT Employee does hereby expressly covenant, promise and agree that during the term of his or her empIoyment and for a period of one (1) year he or she shall not, either in principal or on behalf of, or in conjunction with, any other person, firm, partnership, company or corporation, either as an agent, employee, partner, officer, director, consultant or any other capacity, directly or indirectly, within a radius of (50) miles from any of the Employer's offices, do any of the following: Employee shall not engage in the employment service or temporary help business in competition with the Employer. Employee agrees that he or she shall not solicit or contact any of Employer's clients with whom he or she dealt during the employment relationship. Employee agrees that he or she shall not solicit, divert, or take away potential applicants or client companies of Employer within said fifty (50) mile radius of any of the Employer's offices for the period of one (1) year from the termination of his or her employment relationship. Employer agrees to compensate Employee for performance of Regional Marketing Representative as confirmed in Exhibit "B'; Letter of Offer. Employer agrees to provide Employee fringe benefits of Offer. confirmed in Exhibit "B", Letter 10. 11. Employer shall reserve the right to direct and control the assignment of applicants/temporary employees and client companies to Employee and Employee agrees to accept the responsibility assigned to him or her by Employer. Employee may voluntarily terminate the employment relationship provided he or she notifies Employer two (2) weeks in advance as to the date of his or her termination. Employer may terminate the employment relationship for the following reasons: Violation of the licensing laws of the Commonwealth of Pennsylvania and/or Federal Regulations governing the employment services or temporary help services. Any continued course of conduct which is detrimental to the Employer which after notice by Employer to Employee is continued by Employee. This conduct can include, but is not limited to, intoxication on the job, abusive language, immoral conduct, tardiness and unexcused absences, refusal to fol~w Employer policies or instructions in the performance of his or her duties. C. Any time during the probationary period without cause. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania and shall be construed in accordance therewith. IN WITNESS WIrlEREOF, the parties hereto have executed this agreement the day and year first above written. CAPITAL AREA TEMPORARY SERVICE Brian J. ~faughan President Regional Marketing Representative Signature of Employee Witness: Charla K. B/shop 284 Fredericksburg Road Jonestown Pa 17038 April 27,2001' Dear Charla, This will confirm our offer and your acceptance of emolovment with Elite Staffing Services The following details our agreement. - ~ . Position: Date of Hire: Hours of Work: Salary: Regional Marketing Representative May 14th 2001 (or sooner) 8 am to 5 pm, Monday thru Friday $ 37,000.00 per year Benefits effective after satisfactory completion of 90 day probationary period. * Salaried Status * Single Coverage Health Insurance at no cost to Employee -- dependent coverage * available at employee expense. , Holiday Pay -- 8 per Year Sick Pay - ( not more than 6 per year ) * Vacation Pay -- One week the first year. Two weeks after after five years, two years ,three weeks * 401-K after six months of service. * Mental Health Days, 4 per year. , Birthday offwith pay. Mileage to be paid monthly up to 1,100 miles per month. At the 1, 1001 mile you will be paid a car allowance of $ 350.00 per month based on a 40 hour work week. The above benifits are based on a full year of employmant. Since you are starting after January 1st you are el gible the following; 4 Vacation Days 4 Sick Days and 2 Mental Hca th days EFFECTIVE IMMEDIA TEL Y- WILL RECIEVE.4% OFALL MARGIN DOLLARS OF CURRENT OFFICES WHO HA VE MET REQUIR3'IENTS . (At current revenue, would equal $85.00/week or an extra $4,425.70 per year ) WILL RECIEVE $150.00 FOR EVER y NEW CLIENT AFTER 40 HOURS ARE BILLED TO THAT CLIENT. Charla, we am extremely excited about the assets you bring to Elite Staffing Services. WELCOME ABOARD !! Sincerely, Maria Todaro- McGuire Director of Operations ELITE STAFFING SERVICES JOB DEsCRIPTIoN REGIONAL MARKETING REPRESENTATIVE ~" 1. JOB SUMMARY The Regional Marketing Representative is respons~le for the malntenance of currant clients through Q A checks while continuously identifying new/add/t/baal needs as well as identifying new areas of business or service that can be offered to Operat/ons. the commun/ty. This position/s supervised by the D/rector of 2. PRIMARY RESPONSIBILITIES A. Establish the initial relationship with new clients to determine need, length of service time and pote~al for additional needs. B. Develop a Marketing plan to e~thance sales and profit C. Maintain a current list of immediate and secondary contacts and keep list updated as appropriate. D. Develop m~rketing strategies to educate potential new clients. E. in implement tlan or new progmm end sm ce to com u.ity. F. Continuously perform QA checks with all our current clients to determ~e level of satisfactio~ with OUr ser~ce. G. Provide weekly updates of clients at weekly staffing meetings. H. The Regional Marketing Representa//ve will be responsible for s~bmitting monthly updates of marketing provided and to whom, ideas for potential clients and plan for accomplishing these Goals to the DireCtor of Operations. ,~ . I. Adheres to Elite starting Services Strategies and programs in their Marketing effort. J. Communicates on a regular basis with the Medical Staffing Coordinators for updates or additional leads to new or potential clients. K. Assist the Director of Oporations and Medical Staffing Coordinators i ' policies to potential clients and re,,;-.,,a-- -' '-- · · ....... n interposing and O'ansmittin~ changing standards. - .... ,ua eyasung poucles aaa procedures and updates to meet L. Possess ability to plan, organize and implement 'a Mar~in st~t~ g gy. M. Ability to communicate information regarding ELITE and its role and affect in the Communny. N. Other duties as assigned. , . EDUCATION AND EXPERIENCE ' A. Baccalaureate Degrae preferred in ralated fiel~ C. Knowledge of the Health care hldus~-y, State regulations of Agoncies and Stafl~g Facilities in health related areas . D. Excellent comm~nication~lls required includin~ d ' oral presentations. ~ eveiopment o£ written and 4. HUMAN RELATIONS A. Skilled in interpersonal relationships. B. Must project a professional and positive image and attitude C.-Must be able to communicate and interact with all socioeconomic S. I. eompreh.e, nd the job description of R,~.:o ~ nm ~l~rKeiil~ Ke · .a, no am qutlified for the position. · ~---~- ...... g presenta~ve .... - -~.~.~ me posmon and will perform me responsthflifies to the best of my abilities. Marketing Representative Date 5/2001 Exhibit 2 ~ical/Den~ 422 Medical/Dental 'aploym~ Employment Medical/Dental 422 Medical/Dental THE PATRIOT-NEws a SUNDAY, JUNE 30, 2002 422 Medical/D~l 422 422 MedicallDentali:~ or if you have any questions about )lease caU Mr. Eckensode at (717) 78%2160. 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A valid driver's ficanse, a rsliatile source of bansportation, end PC proficiency including expedenca wi~ Mic. mcofl Word am necessary. Excel~PowerPoint/ Access experience is preferred. Excaflan~ compensalJon/beneflt~ psckage Send resume and ~a~sbur~,i~2~,~s~o.: Employee Relations, Capital BlueCmss, .., _~,._ f/-2211, www.capbluectoss.com E ual ~ppormnny/Affirmative Ac~on Emp~3yer q Capital BlueCross Medical Office Oat Full-'lime File Clerk · · Part-Time NUCLEARM lC E MEDICAL NURSING RN SUPERVISORS & LPN'S At Vi/la Teresa, we am committed as team to provide the finest service in the area to the eldedy who reside in our home. We am equally committed to provide the highest level of support to our team Jn an atmosphere that while cha is positive and We invite you to drop in to see us anytime,"or contact us at: Villa Teremi ~ 1051 Avila Road Handsburg, PA 17109 Phone: 717-652-5900 Fax 7.17-652-5941 Exhibit 3 LAW OFFICES BALL, MURREN ~ CONNELL C~u~, I-Jn~L. PENNS~VAN~ 17011 ~%,-m.~, PEN~SYLVANL~ 17108-1108 VIA CERTIFIED iVIAIL July 1, 2002 Ms. Charla Bishop 284 Frederickburg Road Jonestown, PA 17038 RE: Choice Nursing, Inc. Dear Ms. Bishop: We represent Elite Staffing Services, Inc., the successor to Capital Area Temporary Services. On May 15, 2001, you executed an Employment Agreement with Capital Area Temporary Services. A copy of that Employment Agreement is attached hereto. Under paragraph 3 of that Employment Agreement, you agreed not to disclose or use for your benefit, or for the benefit of any competing ~,&-m, any of the files records and data belonging to Capital Area Temporary Services, and now to Elite Staffing Services, Inc. In that same paragraph, you agreed not to remove any of the files or records or data of Capital Area Temporary Services from its offices without its prior consent. In addition, in paragraph 7 of that Employment Agreement, you agreed that, for a period of one year after the termination of your employment, you would not engage in the employment or temporary help service business in competition with Capital Area Temporary Services; solicit or contact any of the clients of Capital Area Temporary Services; or sohcit, divert or take away potential applicants or client companies of Capital Area Temporary Services. Elite Staffing Services, Inc. has reason to believe that you are currently acting in violation of your Employment Agreement with it and its predecessor by engaging in a competing temporary services business known as Choice Nursing, Inc. You are hereby notified that, unless you cease and desist from aH activities that are in violation of the aforesaid Employment Agreement, Elite StaflLug Services, Inc. will flu d it necessary to seek enforcement of that Agreement through appropriate judicial remedies. If you believe that you are not in violation of the aforesaid Employment Agreement, we ask that you immediately furnish us a complete statement of assurances to that effect. Very truly yours, PJM/nH Attachment cc: Mr. Brian J. Gaughan Choice Nursing, Inc. Philip J. Murren Exhibit 4 LAW OFFICES BALL, 1VIURREI~ ~ CONNELL C-~P Hrr,~. P~SYLV~ 17011 ~'~,o, PE~n~S'~V~XA 17108-1108 CERTIFIED 1ViAIL July 1, 2002 Choice Nursing, Inc. 3514 Trindle Road Camp Hill PA 17011 RE: Charla Bishop To the Chief Executive Officer: We represent Elite Staffing Services, Inc., the successor in interest to Capital Area Temporary Services. It has come to the attention of Ehte Staffing Services, Inc. that its former employee, Charla Bishop, may be in violation of an Employment Agreement which she executed with my client on May 15, 2001. My client also has reason to believe that Ms. Bishop is employed by Choice Nursing, Inc., in competition with y client s business. I enclosed herewith a copy of Ms. B' ' ~shop s Employment Agreement with my client executed by Ms. Bishop on May 15, ,2001. I also enclose a copy of a letter to Ms. Bishop informing her of my client s belief that she is now in violation of her Employment Agreement. This letter will serve as a notice to Choice Nursing, Inc. that my client will pursue all appropriate judicial remedies necessary to enforce Ms. Bishop's Employment Agreement against her and against all those who are yERIFICATION I, BRIAN J. GAUGHAN, President of Elite Staffing Services, Inc., hereby verify that I am authorized to make this verification; and that the averments made in the foregoing document are tree upon my personal knowledge or information and belief· I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to Unswom Falsification to Authorities. Date: July 26, 2002 · aughan, President Elite Staffing Services, Inc. VERIFICATION I, BRIAN J. GAUGHAN, President of Elite Staffing Services, Inc., hereby verify that I am authorized to make this verification; and that the averments made in the foregoing document are true upon my personal knowledge or information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to Unswom Falsification to Authorities. Date: July 26, 2002 Brian J. G~ughan, President Elite Staffmg Services, Inc. Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 45902 JOHNSTON & DIAMOND, P.O. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 ELITE STAFFING SERVICES, INC., IN THE COURT OF COMMON PLEAS formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation, Plaintiff V. CHARLA K. BISHOP, an individual, Defendant CUMBERLAND COUNTY, PA NO. 3594 of 2002 CIVIL ACTION - EQUITY PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY Please enter the appearance of James A. Diamond, Esquire, and the law fimi of Johnston & Diamond, P.C., as counsel for Defendant Charla K. Bishop in the above-noted matter. JOHNSTON & DLa2dOND, P.C. Suite 100, 150 Corporate Center Dr. Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: August 8, 2002 Reg. No. 43902 Attorneys for Defendant CERTIFICATE OF SERVICE I, JAMES A. DIAMOND, hereby certify that I have this date served the foregoing Praecipe for Entry of Appearance upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Philip J. Murren, Esquire Thomas A. Capper, Esquire BAIJ.~ MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 Dated: August 8, 2002 DIAMOND, ESQUIR~~ Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P, O, Box 98, Camp Hill, PA 17001-0098 Phone: {717) 975-5500 ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation, Plaintiff/Counterclaim Defendant V. CHARLA K. BISHOP, an individual, Defendant/Counterclaim Plaintiff IN THE COURT OF COMMON PI.FAS CUMBERLAND COUNTY, PA NO. 3594 of 2002 CIVIL ACTION - EQUITY/LAW NOTICE TO PLEAD TO: Elite Staffing Services, Inc., f/k/a Capital Area Temporary Services, Inc., Plaintiff/Counterclaim Defendant c/o Philip J. Murren, Esquire BATx, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 You are hereby notified to file a written response to the within Counterclaim within twenty (20) days from service hereof, or a judgment may be entered against you. JOHNSTON & DLa~MOND, P.C. Suite 100, 150 Corporate Center Dr. Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: August 12, 2002 / P~' Reg. No. 43902 ~-~Attorneys for Defendant Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 ELITE STAI~lqNG SERVICES, INC., IN THE COURT OF COMMON P!.F. AS formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Penn- sylvania Corporation, Plaintiff/Counterclaim Defendant V. CHARLA K. BISHOP, an individual, Defendant/Counterclaim Plaintiff CUMBERLAND COUNTY, PA NO. 3594 of 2002 : CIVIL ACTION - EQUITY/LAW ANSWER WITH NEW MATTER AND AFFIRMATIVE DEFENSES AND COUNTERCLAIM Defendant, Charla K. Bishop, through her undersigned Attorneys, answers the respective al- legations of the Complaint of Elite Staffing Services, Inc., as follows: 1. Admitted in Part; denied as stated in part. It is admitted that Plaintiff is a Pennsyl- vania corporation with a principal place of business at 839 Market Street, Lemoyne, Pennsylvania, and that it is a successor-in-interest to "Capital Area Temporary Services, Inc." To the extent that the allegations in Paragraph 1 of the Complaint may imply any specific type of relationship between Capital Area Temporary Services, Inc. and Elite Staffing Services, Inc., or may imply any formal as- signment of contract between any other entity and Plaintiff, such implied allegations are denied by Defendant on the ground that Defendant, after reasonable investigation, does not currently have suf- ficient knowledge or information to detensdne the truth or falsity of those implied allegations. By way of further answer, Defendant avers that Plaintiff is successor-in-interest to, and is bound by, the employer obligations under the Employment Agreement she entered into with the employer using the trade name "Capital Area Temporary Service." 2. - 6. Admitted. 7. Admitted in part; denied in part. The allegations in Paragraph 7 are admitted, except the allegation that Ms. Todaro-McGuire was terminated on April 15, 2002. On the contrary, Ms. Todaro-McGuire was terminated on April 16, 2002. 8. Admitted. 9. Admitted in part; denied in part. It is admitted that in May of 2001, Defendant en- tered into an Employment Agreement, a true and correct copy of which is attached as "Exhibit 1" to Plaintiff's Complaint, with "Capital Area Temporary Service," which entity was characterized in the Agreement only as a Pennsylvania "Company." To the extent that Paragraph 9 alleges that the date of actual execution by Defendant was May 15, 2001, it is denied in that the date Defendant executed the document attached as Exhibit 1 was May 23, 2001, after she already was an employee of prede- cessor employer Capital Area Temporary Service. By way of further answer, the date of"5/23/01" set forth on the last page of Exhibit 1 of Plaintiff's Complaint was written by Defendant when she signed that document. Defendant further alleges that when she was offered, and agreed to accept, employment with Capital Area Temporary Service, the predecessor-in-interest to Plaintiff, and when she actually began working, she had not agreed to and was not aware of any non-compete or non- disclosure agreement, and that Defendant did not receive any promotion to any new position as of May 23, 2001, when she, during the course of her employment, signed the document attached to Plaintiff's Complaint as Exhibit 1. To the extent that Paragraph 9 may imply that Elite Staffing Ser- 2 vices, Inc. directly entered into the Employment Agreement in 2001, it is denied, in that, as previ- ously alleged, the name of the Employer in that Employment Agreement was "Capital Area Tempo- rary Service." Defendant did not subsequently sign a separate document purporting to contain a non- disclosure or non-compete covenant with "Elite Staffing Services, Inc." or with "Capital Area Tem- porary Services, Inc." Defendant is, after reasonable investigation, without sufficient knowledge to determine the exact nature of the relationship between the trade name "Capital Area Temporary Ser- vice,'' which does not appear to be a current fore,ally registered fictitious name with the Pennsyl- vania Department of State, and either "Elite Staffing Services, Inc." or "Capital Area Temporary Services, Inc." However, Defendant admits that Plaintiff is a successor-in-interest of some sort with respect to certain employer obligations of Capital Area Temporary Service. 10. It is admitted that the quotation in Paragraph 10 is an accurate quotation of a portion of the Employment Agreement entered into by Defendant on May 23, 2001 with Capital Area Tem- porary Service. By way of further answer, any such covenant is unenforceable by Plaintiff against Defendant for the reasons, among other, more fully set forth in Paragraphs 61 through 100 of Defen- dant's New Matter and Affirmative Defenses below. 11. It is admitted that the quotation in Paragraph 11 of the Complaint, including the quo- tation of the double negative to the effect that the employee shall "not...not" engage in various ac- tivities listed, is an accurate quotation of a portion of the Employment Agreement entered into by Defendant on May 23, 2001 with Capital Area Temporary Service. By way of further answer, the said Employment Agreement, including the purported "Restrictive Covenant" provision which never prohibited anything by virtue of the double-negative structure, was drafted solely by Employer. Moreover, any restrictive covenant of such Employment Agreement would, as a matter of law, be unenforceable against Defendant by Plaintiff for the reasons more fully set forth in Paragraphs 61 through 100 of Defendant's New Matter and Affirmative Defenses below. 12. Admitted in part; denied as stated in part. It is admitted that Defendant was employed by Plaintiff and by its predecessor-in-interest, Capital Area Temporary Service, as a Regional Mar- keting Representative during the period from May 15, 2001 to April 16, 2002. By way of further an- swer, on or about April 16, 2002, successor employer Elite Staffing Services, Inc. terminated Ms. Bishop's employment without proper cause in violation of the Employment Agreement, which re- stricted employer's right to terminate Ms. Bishop's employment to certain expressly enumerated "for cause" reasons. 13. Denied as stated. Defendant admits that her job duties were as specifically set forth in the Employment Agreement's Job Duties Attachment dated May 23, 2001 (Complaint Exhibit No. 1), which is incorporated herein by reference. To the extent that the description in Paragraph 13 of the Complaint is inconsistent with the Employment Agreement, it is denied. 14. Admitted in part; denied as stated in part. It is admitted that at all relevant times from when Defendant began working for predecessor employer Capital Area Temporary Service on May 15, 2001 until when her position was eliminated without just cause on April 16, 2002, Defendant m- ported directly to Ms. Maria Todaro-McGuire and that Ms. Todaro-McGuire was ultimately respon- sible for, and directly supervised, all duties and activities of Defendant during her employment for Plaintiff and Capital Area Temporary Service. Any implied allegation that "Elite Staffing Services, Inc." was the name of the employer the entire time beginning in May of 2001 is denied. On the con- trary, Plaintiff was originally hired by, and, on May 23, 2001, signed the Employment Agreement with, predecessor employer "Capital Area Temporary Service." 15. Admitted in part; denied as stated in part. It is admitted that Defendant's duties in- cluded working to establish and then maintain relationships with medical facilities in central Penn- sylvania. To the extent that the averment that she was responsible for such activities may be read to mean that she was not doing these activities under the direct supervision of a superior who was ulti- mately responsible for such activities, it is denied. On the contrary, all such activities were under the direct supervision of Plaintiff's Director of Operations, Maria Todaro-McGuire. 16. Admitted in part; denied as stated in part. It is admitted that Ms. Bishop had access to, and used, certain records, business data and files during her employment with Employer and its predecessor which concerned customer medical facilities, temporary staffing applicants, and similar matters. To the extent that the allegation in Paragraph 16 may imply that the majority ofinfox-x~ation Ms. Bishop had or used concerning client contacts or information about clients was provided by Em- ployer or its predecessor to her, as opposed to being learned by her in prior jobs and brought with her to her employment with Employer and its predecessor, it is denied. On the contrary, Defendant, in previous jobs in the central Pennsylvania healthcare industry, had already accumulated and was aware of the majority of that information that Plaintiff now attempts to allege was compiled by it. 17. Denied. Defendant, after reasonable investigation, does not have sufficient knowl- edge of the truth or falsity of the vague allegation of Paragraph 17 concerning the alleged time, effort and money spent in compiling any information Plaintiff purports to claim as proprietary, and there- fore denies such allegations. It is denied that any of the information described is, in fact, proprietary 5 in nature or properly considered confidential for the reasons more fully set forth in Paragraphs 61 through 100 of Defendant's New Matter, below. Defendant further alleges that information of the types described are generally known to others in the industry. By way of further answer, the Plaintiff and its predecessor-in-interest did not treat any of the information as proprietary or strictly confiden- tial. On the contrary, Plaintiff and its predecessor did not even require Defendant's immediate boss, Maria Todaro-McGuire--who had and used all of the same infon,ation Defendant had and used, and much more info,,ation to which Defendant was not privy--to enter into a contract restraining her use and disclosure of any such information or restraining Ms. McGuire's competing against the Plaintiff or its predecessor. Plaintiff, therefore, acted incompatibly with treating such information as confidential or proprietary. 18. Admitted. By way of further answer, Plaintiff willfully violated, and completely re- pudiated, the said Employment Agreement by discharging Ms. Bishop without cause contrary to the Employment Agreement, including the provisions in Paragraph 11 of that Agreement. 19. Admitted in part; denied in part. Defendant admits that after being unemployed for a period of time and collecting Unemployment Compensation, she ultimately took a job with Choice Nursing, Inc. Regarding the allegation in Paragraph 19 that Plaintiffwas aware of Defendant's em- ployment with Choice Nursing, Inc., for approximately a month prior to filing any Complaint, it is denied by Defendant on the ground that Defendant, after reasonable investigation, does not have suf- ficient knowledge to determine the truth or falsity of such averment. Defendant therefore denies the averment and, if material, demands proof thereof on the trial of this cause. 20. Denied. Defendant denies that any information that she used or had access to during her employment with Plaintiff can be properly characterized as confidential, in that Plaintiff acted inconsistently with treating such information as being confidential and/or has waived any claims of confidentiality. In this regard, Defendant alleges that even her immediate supervisor, Maria Todaro- McGuire, who had access to all of the same information and more, never was required to have any non-disclosure covenant in favor of Plaintiff or its predecessor-in-interest. Plaintiff also has not en- forced any non-disclosure or non-compete covenants of several other former employees with access to similar information who went to work for competitors after leaving their employment with Plain- tiff or its predecessor-in-interest. 21. Denied. The allegations in Paragraph 21 of Plaintiff's Complaint are denied in that Defendant has not used any confidential information of any kind that properly belongs to Plaintiff, and on the ground that there is no enforceable non-disclosure obligation under any currently existing agreement that can be enforced by Plaintiff against Defendant. 22. Denied. On the contrary, Defendant has not attempted to persuade current employees to leave Elite Staffing for Choice Nursing, Inc., notwithstanding that there is no enforceable contrac- tual prohibition against her doing so. 23. Denied. The allegations in Paragraph 23 of Plaintiff's Complaint are denied in that Defendant has not used any confidential information of any kind that properly belongs to Plaintiff, and on the ground that there is no enforceable non-disclosure obligation under any currently existing agreement that can be enforced by Plaintiff against Defendant. 7 24. - 26. Admitted in part; denied as stated in part. It is admitted that Defendant re- ceived a letter dated July 1, 2002, a true and correct copy of which is attached as "Exhibit 3" to Plaintiff's Complaint. To the extent that the allegations in Paragraphs 24 through 26 attempt to characterize or interpret such correspondence, those characterizations and interpretations are denied in that the letter speaks for itself. Defendant admits that she did not respond to the letter, but denies any implied conclusion of law that she had any obligation to respond. 27. Admitted in part; denied as stated in part. Defendant admits that the letter attempting to interfere with Defendant's existing employment relationship with Choice Nursing, Inc. was sent as stated, and that Exhibit 4 is a true and correct copy of the letter. To the extent that Paragraph 27 at- tempts to interpret or characterize the content of the letter, such allegations are denied in that the let- ter speaks for itself. 28. Denied. On the contrary, Ms. Bishop has not engaged in any unlawful or improper course of conduct of any kind. By way of further answer, Plaintiff having materially breached and wholly abrogated the Employment Agreement by firing Defendant without cause on April 16, 2002, and by thereby discarding her as being worthless to Plaintiff's business--has no plausible contractual claim against Defendant based on that repudiated Employment Agreement, even ignoring any princi- ples of Pennsylvania law prohibiting the enforcement of employee non-compete covenants by as- signees or successors-in-interest to an employment agreement. Moreover, Ms. Bishop also has no other obligations at law or in any other contract to not compete against Plaintiff, as alleged. 29. - 30. Denied. It is denied that Plaintiff has any viable cause of action, has suffered any cognizable losses or harm of any kind, or is entitled to any relief of any kind, whether equitable or at law. 31. Denied. On the contrary, Defendant--who was known by Plaintiff at the time of the improper discharge to be suffering from medical conditions and physical restrictions that limit her employment options--would suffer extreme hardship and loss if she were restricted from being able to earn a livelihood working in a temporary employment office. It is further denied as being false on its face that the issuance of the demanded affirmative injunction to stop Defendant's gainful em- ployment-which employment Plaintiff itself alleges it knew about for at least several weeks before it even filed a Complaint--"will maintain the status quo." COUNT I 32. Defendant incorporates by reference her allegations in Paragraphs 1 through 31 of her Answer, as set forth above. 33.- 35. Denied as stated. On the contrary, there is no enforceable non-compete agreement in favor of Plaintiff against Defendant. By way of further answer, Defendant incorporates by reference her allegations in Paragraphs 61 through 100 of her New Matter and Affirmative De- fenses, below. 36. - 37. Denied. It is denied that Plaintiff is entitled to any injunction or other relief, or that Plaintiff has any viable cause of action or has suffered any cognizable loss or harm. WHEREFORE, Defendant, Charla K. Bishop, respectfully requests that judgment be entered in her favor and against Plaintiff, and that this Count be dismissed with prejudice. 9 COUNT II 38. Defendant incorporates by reference her allegations in Paragraphs 1 through 37 of her Answer, as set forth above. 39. Denied. On the contrary, there is no enforceable obligation on the part of Ms. Bishop in favor of Plaintiff, subsequent to April 16, 2002, to refrain from soliciting any medical facilities on behalf of any competitor, and there is no enforceable covenant not to use any information of any kind. By way of further answer, Ms. Bishop has not used any infoimation of Plaintiff's that can be reasonably deemed confidential or proprietary in connection with her employment with Choice Nurs- ing, Inc. 40. Denied. On the contrary, Defendant has not violated, and was not even bound at any relevant time by, any non-compete or non-disclosure agreement in favor of Plaintiff. Defendant fur- ther denies using any protectable confidential infom~ation or documents belonging to Plaintiff. 41. - 43. Denied. The allegations in Paragraphs 41 through 43 of the Complaint consti- tute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Pro- cedure. To the extent that this Court deems a response to such allegations to be necessary, those al- legations are denied in that Plaintiff does not have any viable cause of action, has not suffered any cognizable harm or loss, and is not entitled to any relief or remedy of any kind. WHEREFORE, Defendant, Charla K. Bishop, respectfully requests that judgment be entered in her favor and against Plaintiff, and that this Count be dismissed with prejudice. 10 COUNT III 44. Defendant incorporates by reference her allegations in Paragraphs 1 through 43 of her Answer, as set forth above. 45. - 46. Denied. The allegations in Paragraphs 45 and 46 of the Complaint are denied in that there was no enforceable contractual obligation in favor of Plaintiff which prohibited Ms. Bishop from using any information at any time relevant to the above-captioned action. Moreover, Defendant has not--for her benefit or the benefit of anyone else disclosed or divulged any sort of proprietary or confidential information belonging to Plaintiff. By way of further answer, there is no information, whether or not claimed by Plaintiff to be confidential, that would not already be fully available to Choice Nursing, Inc., by virtue of its employment of Chief Executive Officer Maria McGuire, regardless of whether Defendant were employed at Choice Nursing, Inc. 47. - 49. Denied. The allegations in Paragraphs 47 through 49 of the Complaint consti- tute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Pro- cedure. If this Court deems a response to such allegations to be necessary, those allegations are de- nied in that Plaintiff has no viable cause of action, has suffered no cognizable harm or loss of any kind, and is not entitled to any remedy or relief at law or in equity. WHEREFORE, Defendant, Charla K. Bishop, respectfully requests that judgment be entered in her favor and against Plaintiff, and that this Count be dismissed with prejudice. 11 COUNT IV 50. Defendant incorporates by reference her allegations in Paragraphs 1 through 49 of her Answer, as set forth above. 51. Admitted in part; denied in part. Defendant avers that she has no actual knowledge of Plaintiff's business relationships as of today with any specific medical facilities in Pennsylvania, but admits that her employer, Choice Nursing, Inc., is a direct competitor of Plaintiff. It is denied that Defendant personally is "directly" competing with Plaintiff in that any competition with Plaintiff is solely through her employment with Choice Nursing, Inc. By way of further answer, any information concerning business relationships that had existed in the past between Plaintiff and any medical fa- cilities that may have been known to Defendant was also fully known to Ms. Maria Todaro-McGuire, who is currently Chief Executive Officer of Choice Nursing, Inc., and who is not subject to any non- disclosure obligation or non-compete obligation of any kind in favor of Plaintiff. It is therefore im- possible that Defendant's employment with Choice Nursing, Inc., can have any meaningful effect on the amount of such information that would be available to Choice Nursing, Inc. Moreover, Defen- dant herself is not currently subject to any enforceable non-disclosure or non-compete covenant in favor of Plaintiff. 52. - 53. Denied. Contrary to the expressed and implied allegations in Paragraphs 52 and 53 of the Complaint, Ms. Bishop has not improperly interfered in any way with any protected business relationships. It is further denied that any competitive activities by Defendant or by Defen- dant's current employer, Choice Nursing, Inc., are without privilege or justification since, as a matter of Pennsylvania law, such claimed competition is privileged. 12 54. - 55. Denied. The allegations in Paragraphs 54 and 55 of the Complaint constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Proce- dure. To the extent this Court deems a response necessary, those allegations are denied in that Plain- tiff has no viable cause of action, has suffered no cognizable harm or damage, and is not entitled to any relief or remedy of any kind, including any punitive damages. WHEREFORE, Defendant, Charla K. Bishop, respectfully requests that judgment be entered in her favor and against Plaintiff, and that this Count be dismissed with prejudice. COUNT V 56. Defendant incorporates by reference her allegations in Paragraphs 1 through 55 of her Answer, as set forth above. 57. Denied. On the contrary, Ms. Bishop never knowingly, wrongfully or intentionally utilized any protected confidential or proprietary information of Plaintiff for her own benefit or for the benefit of anyone else. By way of further answer, while Ms. Bishop has not engaged in such ac- tivities, there are no contractual or legal prohibitions enforceable against her that would prevent her from disclosing any of the information Plaintiff claims is confidential or proprietary. 58. - 59. Denied. The allegations in Paragraphs 58 and 59 are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent this Court deems a response to such allegations to be necessary, those allegations are denied in that Plain- tiff has no viable cause of action, has suffered no cognizable harm or loss of any kind, and is not entitled to any remedy or relief at law or in equity. 13 WHEREFORE, Defendant, Charla K. Bishop, respectfully requests that judgment be entered in her favor and against Plaintiff, and that this Count be dismissed with prejudice. NEW MATTER AND AFFIRMATIVE DEFENSES 60. Defendant incorporates by reference her allegations in Paragraphs 1 through 59 of her Answer, as set forth above. 61. Defendant, Charla K. Bishop, in April of 2001 had been offered and accepted em- ployment with Capital Area Temporary Service, and thereafter on May 15, 2001, commenced work- ing for Capital Area Temporary Service without entering into any non-competition or non-disclosure restrictive covenant. 62. Subsequently, on May 23, 2001, while already in the course of employment, Defen- dant, without any change in her job duties or compensation, executed the formal Employment Agreement attached to Plaintiff's Complaint as "Exhibit 1." 63. Any restrictive covenants contained in the said Employment Agreement arc unen- forceable against Defendant duc to a lack of valid consideration. 64. Alternatively, to the extent that Elite Staffing Services, Inc., the Pennsylvania corpo- ration that is Plaintiff herein, may be attempting to enforce any restrictive covenants in the said Em- ployment Agreement as a successor-in-interest to the owner of thc trade name "Capital Area Tempo- rary Service," with whom Defendant entered the Employment Agreement, such claims are barred as a matter of Pennsylvania law in that Defendant did not execute any separate restrictive covenants in favor of any successor employer to whom the Employment Agreement was assigned or transferred. 14 65. Under Pennsylvania law, where an employer entity that is party to an employment agreement that includes restrictive covenants is reconstituted into a different entity, or assigns its rights in an employment agreement to a successor employer, the restrictive covenant portions of the agreement are unenforceable notwithstanding that the employer and employee remain bound by the balance of the employment agreement, since Pennsylvania public policy prohibits the assignment of restrictive covenants. 66. Alternatively, any restrictive covenants in the said Employment Agreement were from the outset unreasonable, overly broad and unnecessary for the protection of any legitimate interests of the employer, and for that independent ground are also unenforceable as a matter of law. 67. Plaintiff and its predecessor did not require non-disclosure or non-compete restrictive covenants from other employees who had access to the same and much more information than De- fendant, and who occupied more sensitive and important posts, including Ms. Maria McGuire, De- fendant's direct supervisor. 68. Defendant believes and therefore avers that Plaintiff's Chief Executive Officer, Brian J. Gaughan, similarly was not required at any time prior to the date of the Complaint in this action to enter any non-compete or non-disclosure restrictive covenant. 69. Plaintiff's selective attempt to enforce any restrictive covenant against Defendant is unreasonable, even ignoring that the Employment Agreement was wholly abrogated by Plaintiff when it willfully and wrongfully discharged Defendant, in that Plaintiff did not take any meaningful steps to enforce any restrictive covenants, if there ever were any, against several former employees who had access to information of the types Plaintiff now claims is confidential or proprietary. 15 70. Alternatively, much of the information now claimed by Plaintiff to be proprietary or confidential, including identities and addresses of medical facilities in central Pennsylvania, is com- monly known not only throughout the central Pennsylvania temporary staffing industry, but to the public at large. The identities of central Pennsylvania medical facilities are readily available from public soumes, including the telephone directory and advertisements. 71. Similarly, the contact persons for central Pennsylvania medical facilities who deal with temporary staffing arrangements are generally available from such medical facilities to any temporary staffing agency simply by placing a phone call to the potential customer. 72. Moreover, a large portion of the infom~ation now claimed by Plaintiff to be somehow proprietary or confidential, including the names of potential temporary staffing employees and of medical facilities and contacts at such facilities who handle temporary staffing, were well known to Defendant from prior employment in the healthcare industry in central Pennsylvania, and such in- foimation was brought by her to the employment, not obtained from it. 73. Alternatively, any claimed restrictive covenants of the Employment Agreement are unenforceable by Plaintiff by virtue of its material breach of the Employment Agreement when it discharged Ms. Bishop without cause. 74. On April 16, 2002, Plaintiff, without any prior warning, advised Ms. Bishop that Plaintiff was on that date eliminating her position and was immediately terminating her employment with Plaintiff. 75. In advising Ms. Bishop on April 16, 2002 of her immediate and permanent separation from employment, Plaintiff through its Chief Executive Officer Brian Gaughan, indicated to Ms. 16 Bishop that Plaintiff regretted discharging her but concluded that, for economic reasons, she and her position of Regional Marketing Representative, as well as the position of Director of Operations held by her immediate supervisor, Ms. Maria Todaro-McGuire, were determined by Plaintiff to be ex- pendable, and were therefore being eliminated immediately. 76. Defendant's sudden April 16, 2002 separation from employment was not grounded any improper conduct on Defendant's part. 77. When Defendant was advised on April 16, 2002 by Plaintiff's Chief Executive Offi- cer of her involuntary termination, Plaintiff's Chief Executive Officer indicated to Defendant that she should be able to find a similar position in the area and assured Defendant that she should be entitled to Unemployment Compensation until she found such a job, since was she was being involuntarily separated from employment. 78. In that meeting of April 16, 2002 with Plaintiff's Chief Executive Officer, Defendant asked Plaintiff's Chief Executive Officer if he would be willing to write letters of recommendation to prospective employers if requested by Defendant, and Plaintiff' s Chief Executive Officer promised that he would do so. 79. Shortly after Plaintiff's discharge of Ms. Bishop, Plaintiff sent a letter dated April 19, 2002 to Ms. Bishop confirming the elimination of her position and her termination. A true and cor- rect copy of the said April 19, 2002 letter from Plaintiff' s president, Brian J. Gaughan, to Defendant, Charla Bishop, is attached hereto as "Exhibit A," and incorporated herein by reference. 17 80. The said letter does not suggest in any way that Ms. Bishop's termination from em- ployment was due to any misconduct on her part, but on the contrary indicates that Plaintiff's presi- dent was "sorry that this decision had to be made ...." 81. In the said April 19, 2002 letter, Plaintiff again alluded to the notion of Defendant's finding "another opportunity that suits [her] career requirements." 82. Plaintiff was at ail relevant times, including when it unilaterally discharged Defendant on April 16, 2002, successor-in-interest to, and bound by, the employer's obligations under the said Employment Agreement. 83. Plaintiff's termination of Defendant was not during the 90-day probationary period provided for under the Employment Agreement, and was not for any of the specifically enumerated bases for which Defendant's employment could be properly tesminated. 84. Plaintiff's discharge of Defendant without cause on April 16, 2002, materially breached the Employment Agreement that Plaintiff is now attempting to enforce. 85. Alternatively, the improper termination of Defendant's employment without the re- quired cause less than one year after she commenced employment with Plaintiffresults in a failure of consideration to support any restrictive covenants. 86. Enforcement under the circumstances of any restrictive covenants would violate the public policy of Pennsylvania and would result in an unlawful restraint of trade and restraint on De- fendant's ability to earn a livelihood. 87. Enforcing the said restrictive covenants would not meaningfully advance or protect any legitimate interests of Plaintiff under the circumstances, particularly in view of the fact that De- 18 fendant' s current employer already employs the individual who had directly supervised and overseen all of Defendant's activities while she was employed by Plaintiff Ms. Maria McGuire and that individual is not subject to any non-disclosure or non-compete covenants. 88. Alternatively, Plaintiff's encouragement to Defendant to find a similar position suit- able to her career requirements constitutes a waiver of any claims relating to such employment. 89. Because Ms. Maria McGuire is already working for Choice Nursing, Inc., there can be no meaningful harm to Plaintiff caused by Defendant also working for Choice Nursing, Inc., even ignoring that there are no enforceable obligations on the part of Defendant in favor of Plaintiff to not compete or to not disclose information. 90. Some or ail of Plaintiff's claims are barred by the doctrine of unclean hands. 91. Enforcing a restrictive covenant against Defendant would cause extreme and undue hai~i~ and loss to her in that it would prevent her from earning a meaningful living. 92. At the time of Plaintiff's improper discharge of Defendant, Plaintiff was aware that Defendant was suffering from certain medical conditions and had certain physical restrictions limit- ing her ability to perform certain types of employment, including restrictions which make it difficult for her to actuaily engage in certain nursing duties. 93. Plaintiff's termination of Defendant and the elimination of her entire position as being not economically worthwhile for Plaintiff's business makes any attempt to enfome any claimed re- strictive covenant unreasonable and in violation of Pennsylvania public policy. 94. Defendant's termination by Plaintiff was not claimed to be related to any protected in- terest of the employer. 19 95. Any alleged causes of action for claimed tortious interference with contractual and business relationships or prospective relationships is barred by the privilege that attaches to business competition under Pennsylvania law. 96. Moreover, Plaintiff has not alleged any interference with any existing contract be- tween employer and any third party customer that is claimed to be a contract that is not terminable at will. 97. Under Pennsylvania law, even ignoring the business competition privilege, a cause of action for tortious interference with an alleged contractual relationship cannot be based on a contract terminable at will. 98. By Plaintiff's own allegations, Defendant and her employer, Choice Nursing, Inc., are in competition with Plaintiff. 99. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 100. Plaintiff's claims are barred by the doctrine of Laches. WHEREFORE, Defendant, Charla K. Bishop, respectfully requests that judgment be entered in her favor and against Plaintiff, and that Plaintiff's entire Complaint be dismissed with prejudice, with costs awarded to Defendant. 20 COUNTERCLAIM 101. Defendant/Counterclaim Plaintiff, Charla K. Bishop, is an adult individual residing at 284 Fredericksburg Road, $oncstown, Pennsylvania 17038. 102. Plaintiff/Counterclaim Defendant, Elite Staffing Services, Inc. (hereinafter referred to as thc "Employer"), is a Pennsylvania corporation with its principal place of business at 839 Market Street, Lemoyne, Pennsylvania 17043. 103. Venue is proper in this County as Employer has its principal place of business here and regularly conducts business here, and transactions and occurrences upon which Ms. Bishop's Counterclaims are based took place in Cumberland County. 104. On May 15,2001, Ms. Bishop commenced employment with Capital Area Temporary Service, which also at times used the name "Elite Staffing Services." 105. Ms. Bishop, in entering into the employment with Capital Area Temporary Service, also known as Elite Staffing Services, and later "Elite Medical Staffing," was promised a salary of $37,000.00 per year, plus a bonus estimated by the Employer at the time of hiring to be worth at least $4,425.70 per year, plus $150.00 for every new client, as well as various benefits after a 90-day pro- bationary period, including single-coverage health insurance and other fringe benefits. 106. Subsequently, on May 23,2001, Ms. Bishop entered into an Employment Agreement with Capital Area Temporary Service, a true and correct copy of which is attached to Plaintiff's Complaint in the above-captioned action as "Exhibit 1," and is incorporated herein by reference. 107. Sometime subsequent to her entering into the Employment Agreement, the name of the business employing Ms. Bishop changed to "Elite Staffing Services, Inc." 21 108. Elite Staffing Services, Inc. is the successor-in-interest to Capital Area Temporary Service regarding Ms. Bishop's employment and her Employment Agreement. 109. The Employment Agreement restricted the right of Employer to discharge Ms. Bishop after the first 90 days of employment to certain specific for-cause reasons, including a refusal to comply with job descriptions or duties as directed; employee violations of licensing laws of the Commonwealth of Pennsylvania and/or federal regulations governing employment services or tem- porary help services; or a continued course of conduct detrimental to the Employer which is contin- ued by the employee after notice, arising to the level of gross misconduct as set forth in examples stated in the Employment Agreement in Paragraph 11. 110. "11. The Employment Agreement in Paragraph 11 states as follows: TERMINATION Employee may voluntarily terminate the employment relationship provided he or she notifies Employer two (2) weeks in advance as to the date of his or her temfination. Employer may temdnate the employment relationship for the following reasons: Violation of the licensing laws of the Commonwealth of Pennsyl- vania and/or Federal Regulations governing the employment services or temporary help services. Any continued course of conduct which is detrimental to the Em- ployer which after notice by the Employer to the Employee is contin- ued by Employee. This conduct can include, but is not limited to, in- toxication on the job, abusive language, immoral conduct, tardiness and unexcused absences, refusal to follow Employer policies or in- structions in the performance of his or her duties. C. Any time during the probationary period without cause." 22 111. Paragraph 6 of the Employment Agreement, concerning the probationary period dur- ing which Employer was pemdtted to terminate Ms. Bishop without cause, states in pertinent part as follows: PROBATIONARY PERIOD Employer and Employee acknowledge that the first ninety (90) days of the Employment Agreement shall constitute what is known as a "Probationary Period". At the conclusion of said probationary period, Employer shall have the right to retain or discharge Employee with or without cause. Employer further reserves the right to terminate any time thereafter an employee not fully complying with his or her job description and duties as directed, or any reasons listed under paragraph eleven (11) Termination." 112. On April 16, 2002, Employer, without warning, advised Ms. Bishop that Employer was eliminating her position of Regional Marketing Representative for economic reasons, and that she was being terminated effective immediately on that date. 113. Ms. Bishop's April 16, 2002 discharge from employment was not grounded on any al- leged improper conduct of any kind on her part. 114. Defendant was well beyond the conclusion of the "probationary period" referred to in Paragraph 6 of the Employment Agreement as of the Employer's April 16, 2002 termination of her employment. 115. A letter dated April 19, 2002 from Employer to Ms. Bishop confirming the elimina- tion of her position and termination without cause effective April 16, 2002, is attached hereto as "Exhibit A," and incorporated herein by reference. 116. Ms. Bishop at no relevant time refused or failed to perform any job duties as directed or as required by the Employer. 23 117. The Employer never claimed that the April 16, 2002 discharge was in any way grounded upon or justified by any failure or refusal of Ms. Bishop to comply with any job duties or her job description. 118. Ms. Bishop at no relevant time violated the licensing laws of the Commonwealth of Pennsylvania. 119. Ms. Bishop at no relevant time violated any federal regulations governing employ- ment services or temporary help services. 120. At no time did Employer claim that its April 16, 2002 termination of Ms. Bishop was grounded upon, or justified by, any violation by Ms. Bishop of any licensing laws of the Common- wealth of Pennsylvania or any federal regulations of any kind. 121. Ms. Bishop did not, at any relevant time prior to her sudden April 16, 2002 discharge by Employer, engage in any course of conduct detrimental to the Employer. 122. Ms. Bishop, prior to her sudden April 16, 2002 discharge by Employer, did not en- gage in any continued course of conduct of intoxication on the job, use of abusive language, immoral conduct, tardiness and unexcused absences, or a refusal to follow Employer policies or instructions in the performance of her duties. 123. Employer did not claim that it grounded its April 16, 2002 termination of Ms. Bishop upon any continuing course of conduct, after warning, that the Employer viewed de,mental to the Employer. 124. Ms. Bishop was not warned by the Employer of any alleged course of conduct deemed detrimental to the Employer prior to April 16, 2002, when she was discharged without warning. 24 125. Employer, through its president, admitted to Ms. Bishop at the time of her discharge that the Employer viewed her as being involuntarily terminated due to no fault of her own in advising her that she could apply for and should be entitled to Unemployment Compensation benefits. 126. Following her April ! 6, 2002 termination by Employer, Ms. Bishop did apply for and obtain Unemployment Compensation benefits which were not opposed by Employer based on any claimed willful misconduct. 127. Ms. Bishop has properly perforated all of her obligations under the Employment Agreement, and has satisfied all conditions precedent to Employer's obligation to continue to em- ployer her subject to a just-cause basis for termination. 128. Ms. Bishop, as a result of Employer's breach of the Employment Agreement in dis- charging her without cause on April 16, 2002, has since that date lost, and continues to lose, wages and bonuses of at least $796.65 per week, plus benefits of an unliquidated amount, to which she was entitled under the Employment Agreement. 129. As of the date of this Complaint, Ms. Bishop, as a result of Employer's willful breach of the Employment Agreement, has failed to receive at least $13,543.02, plus an unliquidated amount of fringe benefits, to which she should have been entitled under the Employment Agreement. 130. Ms. Bishop continues to suffer losses of wages and benefits each week as a result of Employer's breach of the Employment Agreement. WHEREFORE, Defendant/Counterclaim Plaintiff, Ms. Charla K. Bishop, respectfully re- quests that this Court enter judgment in her favor in the sum of $13,543.02, plus $796.65 per week 25 during the pendency of this action, plus an amount to be determined with respect to lost fringe bene- fits, less a credit for any wages or benefits from other employment, together with interest and costs. Respectfully submitted, JOHNSTON & D~MOND, P.C. Suite 100, 150 Corporate Center Dr. Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: August 12, 2002 k,.~. Reg. No. 43902 Attorneys for Defendant 26 EXHIBIT A April 19, 2002 Mrs. Charla Bishop 284 Fredericksburg Road Jonestown, PA 17038 Dear Charla, This letter .is in response to your employment with Elite Staffing Services, Inc. This letter is a confirmation of our convm'Sation that was held on Tuesday atlcemoon. As was discussed during our meeting, I have made the decision to eliminate the position of Regional Marketing Repres~ntative for Elite Staffing Services. This decision is effective as of the end of the workday on Tuesday, April 16, 2002. Unfortunately, this decision results in the end of your employment w/th my firm. I am sorry that this decision had to be made and I am also sorry that it afti:cts your employment with my firm. As I stated during our meeting I wish you the best in your future endeavors. I know that you will find another opportunity that suits your career requirements. If you have any questions concerning this letter or any othex matters regarding your employment with my firm, [ would ask that you correspond with me in writing. I will respond to you promptly. Sincerely, President VERIFICATION I, CHARLA K. BISHOP, hereby verify that the statements contained in the foregoing Answer with New Matter and Affim~ative Defenses and Counterclaim are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. CmU~L~ K. BISHOP Dated: August 12, 2002 CERTIFICATE OF SERVICE I, JAMES A. DLqMOND, hereby certify that I have this date served the foregoing Answer with New Matter and Affirmative Defenses and Countemlaim upon the following by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Philip J. Murren, Esquire Thomas A. Capper, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 Dated: August 12, 2002 · DIAMoND, ESQUIRE ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation PENNSYLVANIA Plaintiff CHARLA K. BISHOP, an individual Defendant : IN THE COURT OF COMMON PLEAS : .. : CUMBERLAND COUNTY, : NO. 3594-2002 : CIVIL ACTION - EQUITY .. NOTICE TO PLEAD TO: Defendant, Charla K. Bishop c/o James A. Diamond, Esquire Johnston & Diamond, P.C. 150 Corporate Center Drive Suite 100 P.O. Box 98 Camp Hill, PA 17001-0098 You are hereby notified to file a written response to the enclosed Plaintiff's New Matter and Affirmative Defenses to Defendant's Counterclaim within twenty (20) days from the service hereof or a default judgment m~y be end, red against you. Philip ~. Murren, Esquire PA I.D. No. 21426 Thomas A. Capper, Esquire PA I.D. No. 75020 Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Plaintiff Dated: September 4, 2002 ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation Plaintiff CHARLA K. BISHOP, an individual Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 3594- 2002 CIVIL ACTION - EQUITY PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND AFFIRMATIVE DEFENSES AND COUNTERCLAIM AND PLAINTIFF'S NEW MATTER AND AFFIRMATIVE DEFENSES TO DEFENDANT'S COUNTERCLAIM Reply to New Matter and Affirmative Defenses Plaintiff Elite Staffing Services, Inc., by and through its attorneys, Ball, Murren & Connell, hereby responds to the respective numbered allegations of Defendant's New Matter and Affirmative Defenses set forth as part of Defendant's Answer dated August 12, 2002, as follows: 60. Plaintiff incorporates by reference its allegations in Paragraphs 1 through 59 of its Complaint dated July 26, 2002. 61. Admitted in part; denied in part. It is admitted that Defendant was offered and accepted employment with Capital Area Temporary Services, Inc., in April 2001, and commenced working on May 15, 2001. It is specifically denied that Defendant began working for Plaintiff "without entering into any non-competition or non-disclosure restrictive covenant." Defendant entered imo an Employment Agreement containing non- competition and non-disclosure restrictive covenants on the first day of her employment on May 15, 2001. See Employment Agreement dated May 15, 2001, attached to Plaintiffs Complaint as Exhibit 1. 62. Denied. Defendant executed the Employment Agreement on May 15, 2001, the first day of her employment with Plaintiff. See Employment Agreement dated May 15, 2001, attached to Plaintiffs Complaint as Exhibit 1. The concluding paragraph of the Employment Agreement provides that "IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written." (Emphasis added). The day and year of the agreement is clearly set forth on the first page of the Employment Agreement as May 15,2001. Defendant simply signed a Job Description on May 23, 2001, which was attached to the original Employment Agreement as Exhibit A. Although this Job Description was not formally written on the date Defendant signed the Employment Agreement, Defendant's job responsibilities were communicated to her prior to her first date of employment. The Job Description was a written confirmation of the oral agreement regarding Defendant's job responsibilities as understood by Plaintiff and Defendant at the time of the execution of the Employment Agreement. Defendant's subsequent signing of her Job Description on May 23, 2001, in no way exculpates her from the obligations under her Employment Agreement executed on May 15, 2001, for valid consideration. 63. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, Defendant executed her Employment Agreement for valid consideration and the restrictive covenants are enforceable against Defendant. 64. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at hearing or 2 trial. By way of further response, and not in derogation thereof, Plaintiffs change of corporate name to Elite Staffing Services, Inc. -- without any formal change of ownership interests or corporate structure or change in tax identification numbers -- in no way permits Defendant to violate the restrictive covenants of her Employment Agreement. 65. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are, therefore, denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, Plaintiffs simple change of name to Elite Staffing Services, Inc., without any formal change of ownership interest or corporate structure, in no way permits Defendant to violate the restrictive covenants of her Employment Agreement. 66. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, the restrictive covenants under the Employment Agreement are reasonable, limited to the extent required under Pennsylvania law, and necessary for protecting the legitimate interests of Plaintiff. The restrictive covenants are therefore enforceable as a matter of law. 67. Admitted in part; denied in part. It is admitted that Ms. Maria Todaro-McGuire did not agree to a non-competition restrictive covenant prior to her employment with Plaintiff. It is denied, however, that Ms. Todaro-McGuire is now permitted to disclose any proprietary trade secret information of Plaintiff which she obtained during her employment with Plaintiff. In fact, Ms. Todaro-McGuire is prohibited under common law trade secret principles from disclosing to any individual the proprietary trade secrets of Plaintiff which she might have unlawfully retained after the elimination of her position 3 on April 15, 2002. Plaintiff has not waived any right to seek legal recourse against Ms. Todaro-McGuire should it be determined that she has unlawfully retained and is utilizing proprietary trade secret information of Plaintiff. It is further denied that other employees of Plaintiff did not sign Employment Agreements that included non-disclosure and non- compete restrictive covenants. 68. Admitted in part; denied in part. It is admitted that Brian J. Gaughan, President and sole- shareholder of Plaintiff corporation, has not signed an Employment Agreement. To the extent that the allegations in Paragraph 68 may imply that the failure to have the President and sole-shareholder of Plaintiff corporation sign an Employment Agreement somehow negates the Employment Agreement of Defendant that was executed for valid consideration, such allegations are denied. There would be no reason to require Mr. Gaughan to sign such an agreement because the entire ownership of the corporation is vested in him. If Mr. Gaughan were to work for a competitor, he would only be hurting the interests of his own company. In contrast, Defendant's flouting of her obligations under her Employment Agreement is causing Plaintiff to suffer harm as more fully described in Paragraphs 1 to 59 of Plaintiffs Complaint. 69. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, Plaintiff is not attempting to selectively enforce the restrictive covenants that were negotiated with Defendant prior to her employment with Plaintiff. Defendant is the first former employee, with such an extensive exposure and access to the confidential and proprietary business information of Plaintiff, to violate her covenant not to compete with Plaintiff. It 4 70. 71. is specifically denied that Plaintiff willfully and wrongfully discharged Defendant. In contrast, Defendant's failure to perform her job functions and to market the services of Plaintiff as required under her Employment Agreement necessitated that Plaintiff eliminate her position. Had Plaintiff not made the determination, for legitimate business reasons, to eliminate the position of Regional Marketing Representative, it had sufficient cause to terminate her employment for, inter alia, failure to perform her job functions, failure to follow employer policies and instructions, and repeated tardiness and unexcused absences from work. It is denied that the proprietary information of Plaintiff that is the subject of this action is limited simply to the identities and addresses of medical facilities in central Pennsylvania. Plaintiffs proprietary information includes, but is not limited to confidential employee and temporary employee personnel files, pay rates, testing and application materials, and confidential client records such as contract information, client credit applications, client credit reports, sales records, client rates, supervisory information, shift schedules, and compilations of such information. It is specifically denied that any of this information, of which Defendant formerly had access while employed with Plaintiff, is readily available from public sources. It is denied that the proprietary information of Plaintiff that is the subject of this action is limited simply to the identity of contact persons at medical facilities who may deal with temporary staffing arrangements. Plaintiffs proprietary information includes, but is not limited to confidential employee and temporary employee personnel files, pay rates, testing and application materials, and confidential client records such as contract information, client credit applications, client credit reports, sales records, client rates, 72. 73. 74. supervisory information, shift schedules, and compilations of such information. It is specifically denied that any of this inforiixation, of which Defendant formerly had access while employed with Plaintiff, is readily available from public sources. It is specifically denied that Plaintiffs proprietary and confidential information was known to Defendant prior to her employment with Plaintiff. It is further denied that Defendant brought such information to her employment with Plaintiff. Denied. Plaintiff was lawfully discharged after the elimination of her position on April 16, 2002. It is further denied that Defendant is now permitted to disregard the restrictive covenants contained in her Employment Agreement as a result of the elimination of her position with Plaintiff. Admitted in part; denied in part. It is admitted that Brian J. Gaughan met with Defendant to discuss the elimination of her position effective April 16, 2002. To the extent that the allegations in this paragraph imply that Plalntiffnever met with Defendant to discuss her job perfoi-iiiance and to explain how she could improve her job performance, such allegations are denied. During the course of Defendant's employment, Mr. Gaughan met with Defendant on several occasions to discuss his dissatisfaction with her job performance and to discuss how she could improve her job performance. The elimination of Defendant's position, in light of her continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, could not have come as a surprise to Defendant. Furthermore, Defendant's Employment Agreement does not require Plaintiff to give notice when terminating an employee who has not fully complied 6 with her job description and duties as directed. See Paragraph 6 of Defendant's Employment Agreement, attached as Exhibit 1 to Plaintiffs Complaint. 75. Admitted in part; denied in part. It is admitted that Brian J. Gaughan met with Defendant on April 16, 2002, to discuss the elimination of her position and that for economic reasons he was eliminating her position and regretted having to do so. To the extent that the allegations imply that Defendant's obligations under the restrictive covenants are somehow excused because Plaintiff did not describe how Defendant failed to fully comply with her job description and duties as directed, such allegations are denied. Furthermore, it is denied that Mr. Gaughan stated that he regretted eliminating the position of Maria Todaro-McGuire. 76. Denied. Defendant's continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, necessitated the elimination of her position. 77. Admitted in part; denied in part. It is admitted that Brian J. Gaughan stated that Plaintiff would not be challenging any claim Defendant might make for Unemployment Compensation. It is denied that Mr. Gaughan indicated to Defendant that she should be able to find a similar position in the area. In fact, the April 19, 2002, letter from Mr. Gaughan to Defendant, states that "I know that you will find another opportunity that suits your career requirements." (Emphasis added). See Attachment A to Defendant's Answer. Defendant's career requirements include the restrictive covenants that are contained within her Employment Agreement. 78. Denied. It is specifically denied that Brian Gaughan ever offered to write letters of recommendation to prospective employers if requested by Defendant. 7 79. Admitted. 80. Admitted in part; denied in part. It is admitted that Defendant accurately quotes a portion of the April 19, 2002, letter from Brian Gaughan to Defendant and that no details of Defendant's misconduct were listed in the letter. To the extent that these allegations imply that Defendant is somehow relieved of her obligations under her Employment Agreement because of the absence ora listing of her misconduct in the letter of April 19, 2002, such allegations are denied. 81. Admitted in part; denied in part. It is admitted that Brian Gaughan on behalf of Plaintiff stated that in the letter of April 19, 2002, that "I know you will find another oppommity that suits your career requirements." To the extent that these allegations imply that Plaintiff encouraged Defendant to violate the restrictive covenants of her Employment Agreement, such allegations are denied. In contrast, Defendant's "career requirements" referenced in the letter include the restrictive covenants that are contained within her Employment Agreement. 82. Admitted in part; denied in part. It is admitted that Plaintiff was bound by the employer's obligations under Defendant's Employment Agreement. To the extent that the allegations of "unilaterally" discharging Defendant imply that Defendant was unlawfiflly discharged, such allegations are denied. In contrast, Plaintiff lawfully eliminated Defendant's position on April 16, 2002. In addition, the term "successor-in-interest" is vague and is therefore, denied. By way of further answer, and not in derogation thereof, Plaintiff changed its corporate name to Elite Staffing Services, Inc., without any formal change of ownership interests or corporate structure or change in tax identification numbers. 8 83. Admitted in part; denied in part. It is admitted that Defendant's position was eliminated after the 90-day probationary period described in Defendant's Employment Agreement. It is denied that Defendant's position was eliminated in violation of her Employment Agreement. Defendant's continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, necessitated the elimination of her position. 84. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, it is specifically denied that Plaintiffs elimination of Defendant's position on April 16, 2002, was unlawful. 85. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at heating or trial. By way of further response, and not in derogation thereof, it is specifically denied that Plaintiffs elimination of Defendant's position on April 16, 2002, was unlawful. 86. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, Defendant entered into her Employment Agreement voluntarily and for valid consideration. In addition, the restrictive covenants in Defendant's Employment Agreement do not prevent her from earning a livelihood in nursing or a related field -- her occupation prior to her employment with Plaintiff. 87. Denied. Enforcing the restrictive covenants would prevent Defendant from further attempting to harm the business interests of Plaintiff. By way of further answer, although 9 Ms. Maria Todaro-McGuire, Defendant's current supervisor, did not agree to a non- competition covenant prior to her employment with Plaintiff, Ms. Todaro~McGuire is presently prohibited from disclosing any proprietary trade secret information of Plaintiff which she obtained during her employment with Plaintiff. Plaintiff has not waived any right to seek legal recourse against Ms. Todaro-McGuire should it be determined that she has unlawfully retained and is utilizing proprietary trade secret information of Plaintiff. 88. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, it is specifically denied that Mr. Gaughan ever encouraged Defendant to find employment in competition with Plaintiff. 89. Denied. Defendant will be irreparably harmed if Defendant is not immediately enjoined from violating the provisions of the Employment Agreement. Irreparable harm includes, but is not limited to, loss of good will, customer relationships, and sales and prospective sales that cannot be readily calculated or ascertained. 90. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. By way of further response, and not in derogation thereof, it is specifically denied that Plaintiff acted unlawfully in eliminating Defendant's position on April 16, 2002. 91. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations made in this paragraph. These allegations are therefore denied and strict proof thereof is demanded at the time of hearing or trial. By way of further answer, and not in derogation thereof, the restrictive covenants in 10 Defendant's Employment Agreement do not prevent her from earning a livelihood in nursing or a related field -- her occupation prior to her employment with Plaintiff. 92. Admitted in part; denied in part. It is admitted that Plaintiff was aware that Defendant had diabetes. It is specifically denied that Plaintiff improperly discharged Defendant and that Plaintiff was aware of any medical conditions or physical restrictions limiting Defendant's ability to perform any type of employment including employment in nursing or a related field. To the extent that these allegations imply that Defendant is excused from abiding by the restrictive covenants in her Employment Agreement, such allegations are denied and strict proof at the time of hearing or trial is demanded. 93. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. 94. Denied. Defendant's continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, necessitated the elimination of her position. 95. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at heating or trial. 96. Admitted in part; denied in part. It is admitted only that Plaintiffs Complaint did not describe whether the contracts with third party customers were terminable at will. The remaining averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or triM. 11 97. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at heating or trial. 98. Admitted. 99. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. 100. Denied. The averments set forth in this paragraph are conclusions of law, require no responsive pleadings, and are therefore denied with strict proof demanded at hearing or trial. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter Judgment in its favor and against Defendant as set forth in Counts I through V of Plaintift~s Complaint. Reply to Counterclaim Plaintiff further responds to the respective allegations set forth under the heading "Counterclaim" in Defendant's Answer as follows: 101. Admitted. 102. Admitted. 103. Admitted. 104. It is admitted that Defendant/Counterclaim Plaintiff (hereinafter Defendant) commenced employment with Plaintiff/Counterclaim Defendant (hereinafter Plaintiff) on May 15, 2001. By way of further answer, Plaintiff filed Articles of Amendment on June 15, 2001, 12 changing its corporate name from Capital Area Temporary Services, Inc., to Elite Staffing Services, Inc. 105. Admitted in part; denied in part. It is admitted that the compensation, bonus program and fringe benefits package offered to Defendant prior to employment with Plaintiff is set forth in the Letter of Offer attached to her Employment Agreement as Exhibit B. See Employment Agreement attached as Exhibit 1 to Plaintiffs Complaint. To the extent that the allegations of this paragraph imply that Defendant was entitled to any compensation, bonuses, or fringe benefits after the elimination of her position on April 16, 2002, such allegations are denied. 106. Admitted in part; denied in part. It is admitted that Defendant entered into an Employment Agreement with Plaintiff. It is denied that Defendant entered into the agreement on May 23, 2001. Rather, Defendant executed the Employment Agreement for valid consideration on May 15, 2001. 107. Admitted. 108. The allegations in this paragraph that Elite Staffing Services, Inc., is the "successor-in- interest" to Capital Area Temporary Service is vague and undefined, and therefore such allegations are denied. By way of further answer, and not in derogation thereof, Plaintiff filed Articles of Amendment on June 15, 2001, changing its corporate name from Capital Area Temporary Services, Inc., to Elite Staffing Services, Inc. Plaintiffs change of corporate name to Elite Staffing Services, Inc., did not result in any formal change of ownership interests or corporate structure or require the issuance of a new tax identification number. 109. Admitted. 13 110. It is admitted that Defendant accurately quotes Paragraph 11 of Defendant's Employment Agreement. 111. Admitted. 112. Admitted in part; denied in part. It is admitted that Plaintiff eliminated Defendant's position on April 16, 2002. To the extent that the allegations in this paragraph imply that Plaintiff never met with Defendant to discuss her job performance and to explain how she could improve her job performance, such allegations are denied. During the course of Defendant's employment, Mr. Gaughan met with Defendant on several occasions to discuss his displeasure with Defendant's job performance and to discuss how she could improve her job performance. The elimination of Defendant's position, in light of her continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, should not have come as a surprise to Defendant. 113. Denied. Defendant's continued failure to correct her poor job performance, her continued tardiness and tmexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, necessitated the elimination of her position. 114. Admitted. 115. Admitted in part; denied in part. It is admitted that Brian J. Gaughan on behalf of Plaintiff sent a letter to Defendant dated April 19, 2002, confirming the elimination of her position. It is specifically denied that the letter states that Defendant was being terminated "without cause." It is further denied that Defendant's position was eliminated in violation of her Employment Agreement. Defendant's continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to 14 116. 117. follow the directions and instructions of Plaintiff and its agents, necessitated the elimination of her position. Denied. Mr. Brian J. Gaughan, on behalf of Plaintiff, met with Defendant on several occasions to discuss his displeasure with Defendant's job performance and to explain how she could make improvements. Despite these meetings, Defendant failed to correct her poor job performance. Furthermore, she failed to follow the directions and instructions of Plaintiff and its agents and her tardiness and unexcused absences continued to be a problem. Admitted in part; denied in part. It is admitted that during the April 16, 2002, meeting the topic of Defendant's poor job performance and her failure to fully comply with her job description and duties as directed, was not discussed. To the extent that these allegations imply that Plaintiff was prohibited from eliminating Defendant's position because it failed to describe Defendant's dereliction of her job responsibilities when notifying her of the elimination of her position, such allegations are denied. Furthermore, Paragraph 6 of the Employment Agreement provides in relevant part that: "At the conclusion of said probationary period, Employer shall have the right to retain or discharge Employee with or without cause. Employer further reserves the right to terminate any time thereafter an employee not fully complying with his or her job description and duties as directed ..." This provision does not require Plaintiff to give notice when it is terminating an employee who has not fully complied with her job description and duties as directed. 15 118. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations made in this paragraph. These allegations are therefore denied and strict proof thereof is demanded at the time of hearing or trial. 119. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations made in this paragraph. These allegations are therefore denied and strict proof thereof is demanded at the time of hearing or trial. 120. Admitted. 121. Denied. Defendant's continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, necessitated the elimination of her position. 122. Admitted in part; denied in part. It is admitted that Defendant did not appear to be intoxicated on the job, use abusive language, or engage in immoral conduct. The remainder of the allegations are specifically denied. Defendant was continually tardy and had unexcused absences during the workday. In addition, despite repeated meetings and instructions by Plaintiff to help Defendant improve her job performance, Defendant continued to fail to follow the Plaintiff's pOlicies and instructions in the performance of her duties. 123. Admitted in part; denied in part. It is admitted that Plaintiff did not describe the elimination of Defendant's position as being grounded upon Defendant's failure to fully comply with her job description and duties as directed. To the extent that these allegations imply that Plaintiff was prohibited from eliminating Defendant's position because it failed to describe Defendant's dereliction of her job responsibilities when notifying her of the elimination of her position, such allegations are denied. 16 124. Admitted in part; denied in part. It is admitted that Plaintiff eliminated Defendant's position on April 16, 2002. To the extent that the allegations in this paragraph imply that Plaintiff never met with Defendant to discuss her job performance and to explain how she could improve her job perfoi-Jxtance, such allegations are denied. During the course of Defendant's employment, Mr. Gaughan met with Defendant on several occasions to discuss his displeasure with Defendant's job performance and to discuss how she could improve her job performance. The decision to eliminate Defendant's position, in light of her continued failure to correct her poor job performance, her continued tardiness and unexcused absences, and her failure to follow the directions and instructions of Plaintiff and its agents, should not have come as a surprise to Defendant. By way of further answer, and not in derogation thereof, Paragraph 6 of Defendant's Employment Agreement, does not require Plaintiffto provide warning before eliminating the position of an employee who fails to fully comply with her job description and duties as directed. 125. Admitted in part; denied in part. It is admitted that Brian J. Gaughan stated that Plaintiff would not be challenging any claim Defendant might make for Unemployment Compensation. It is denied that the decision of Plaintiff not to challenge any claim for Unemployment Compensation is somehow an admission that Defendant was terminated "due to no fault of her own." To the contrary, Defendant was clearly in default of her obligations and duties, rendering her continued employment economically untenable. 126. Admitted in part; denied in part. It is admitted that Plaintiff did not challenge Defendant's claim for Unemployment Compensation. It is denied that the decision of Plaintiff not to challenge Defendant's claim for Unemployment Compensation somehow constitutes an admission that Defendant's actions were free from any willful misconduct. 17 It is further denied that Plaintiff was prohibited from discharging Plaintiff in the absence of "willful misconduct," as that term is defined in the Unemployment Compensation Law. 127. It is specifically denied that Defendant has performed ail her obligations under her Employment Agreement when in fact her position was eliminated, inter alia, because of her failure to fully comply with her job description and duties as directed. Furthermore, Defendant continues to breach the terms of the restrictive covenants by her continued employment with Choice Nursing, Inc. 128. It is specificaily denied that Plaintiff has breached Defendant's Employment Agreement and that Defendant was discharged without cause. In addition, it is denied that Defendant is entitled to any compensation, bonuses or fringe benefits after the elimination of her position on April 16, 2002. 129. It is specifically denied that Plaintiff willfully breached Defendant's Employment Agreement. It is further denied that Defendant is entitled to any compensation, bonuses or fringe benefits after the elimination of her position on April 16, 2002. 130. It is specificaily denied that Plaintiff breached Defendant's Employment Agreement. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations made in this paragraph. These allegations are therefore denied and strict proof thereof is demanded at the time of heating or triai. WHEREFORE, Plaintiff/Counterclaim Defendant, Elite Staffing Services, Inc., respectfully requests that this Honorable Court enter judgment in its favor and to dismiss the Counterclaim of Defendant/Counterclaim Plaintiff with prejudice. 18 .New Matter and Affirmative Defens¢~, to Defendant/Counterclaim Plaintiff's Counterclai... 131. Plaintiff incorporates by reference its allegations in Paragraphs 1 through 130 of its Answer and its Reply to the New Matter and Affirmative Defenses of Defendant and its Reply to the Counterclaim of Defendant/Countemlaim Plaintiff. 132. Defendant/Countemlaim Plaintiff(hereinafter Defendant), admits that she is employed by Choice Nursing, Inc. As such, she is receiving compensation, bonuses and fringe benefits from Choice Nursing, Inc. 133. Defendant's request for relief in her Counterclaim does not take into consideration the compensation, bonuses and fringe benefits she is currently receiving from Choice Nursing, Inc. 134. Defendant is required to mitigate her damages and such mitigation would require a reduction in the amount of damages that could possibly be awarded to her in an amount equal to the compensation, bonuses and fringe benefits she is currently receiving from Choice Nursing, Inc. In addition, such mitigation would require a reduction in the amount of damages that could possibly be awarded to Defendant in an amount equal to any Unemployment Compensation benefits she may have received. 135. Defendant's Countemlaims are barred by the doctrine of Laches. WHEREFORE, Plaintiff/Countemlaim Defendant, Elite Staffing Services, Inc., respectfully requests that this Honorable Court enter judgrnent in its favor and to dismiss the Counterclaim of Defendant/Countemlaim Plaintiff with prejudice. 19 DATE: September 4, 2002 BY: Respectfully submitted, BALL, MURREN & CONNELL Philip J. ~nxen, Esquire I.D. No. 21426 Thomas A. Capper, Esquire I.D. No. 75020 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorneys for Plaintiff 20 VERIFICATION I, BRIAN J. GAUGHAN, President of Elite Staffing Services, Inc., hereby verify that I am authorized to make this verification; and that the averments made in the foregoing document are tree upon my personal knowledge or information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to Unswom Falsification to Authorities. Date: September 4, 2002 Brian J. Gaughan~, President Elite Staffing Services, Inc. CERTIFICATE OF SERVICE I, Thomas A. Capper, Esq., hereby certify that I placed a true and correct copy of the foregoing Plaintiff's Reply to Defendant's New Matter and Affirmative Defenses and Counterclaim and Plaintiffs New Matter and Affirmative Defenses to Defendant's Counterclaim in the U.S. Mail, first-class, postage prepaid, this 4th day of September 2002, to: James A. Diamond, Esq. Johnston & Diamond, P.C. Suite 100, 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 In addition, I hereby certify that a copy of the foregoing document was forwarded to the following at the listed facsimile number: James A. Diamond, Esq. 717-975-5511 Date: September 4, 2002 Attorneys for Defendant: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 ELITE STAFFING SERVICES, INC., fomxefly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Penn- sylvania Corporation, Plaintiff/Counterclaim Defendant V. CHARLA K. BISHOP, an individual, Defendant/Counterclaim Plaintiff IN THE COURT OF COMMON PI.EAS CUMBERLAND COUNTY, PA NO. 3594 of 2002 CIVIL ACTION - EQUITY/LAW DEFENDANT'S REPLY TO PLAINTIFF'S NEW MATTER AND AFFIRMATIVE DEFENSES TO DEFENDANT'S COUNTERCLAIM Defendant, Charla K. Bishop, responds to the respective numbered allegations of Plain- tiff's New Matter and Affirmative Defenses to Defendant's Counterclaim dated September 4, 2002, as follows: 131. Defendant denies the allegation of Plaintiff in Paragraph 131 of its New Matter and Affi.native Defenses wherein Plaintiff alleges that it is incorporating by reference Para- graphs 1 through 130 of its Answer and its Reply to New Matter, Affirmative Defenses and Counterclaims. On the contrary, Plaintiff's allegations in its various Answers and Replies do not even number from Paragraphs 1 through 130. The said allegation in Paragraph 131 of Plaintiff's New Matter and Affirmative Defenses is incomprehensible and impossible to answer as stated, and the same is, therefore, denied. By way of further response, Defendant incorporates by refer- ence each and every allegation of her answer, New Matter, Affirmative Defenses and Counter- claim. 132. Admitted. 133. Denied. On the contrary, Defendant's prayer for relief in her Counterclaim spe- cifically requested damages "less a credit for any wages or benefits from other employment .... " 134. The allegations in Paragraph 134 set forth conclusions of law to which no re- sponse is required under the Pennsylvania Rules of Civil Procedure. 135. The allegations in Paragraph 135 set forth conclusions of law to which no re- sponse is required under the Pennsylvania Rules of Civil Procedure. Respectfully submitted, JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 ~'a'a'a~es A. Diamond LJ~i. I.D. No. 43902 Attorneys for Defendant Dated: September 11, 2002 VERIFICATION I, CHARLA K. BISHOP, hereby verify that the statements contained in the foregoing Reply to Plaintiff' s New Matter and Affirmative Defenses to Defendant's Counterclaim are tree and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Dated: CHAm~ K. BISHOP SHERIFF'S RETURN - CASE NO: 2002-03594 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ELITE STAFFING SERVICES INC VS BISHOP CHARLA K OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT BISHOP CHARLA K but was unable to locate Her deputized the sheriff of LEBANON serve the within COMPLAINT & NOTICE , Sheriff or Deputy Sheriff who being says, that he made a diligent search and in his bailiwick. County, & PETI , to wit: He therefore Pennsylvania, to On August 5th , 2002 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing Out of County Surcharge Dep Lebanon Co 18.00 9.00 10.00 54.18 .00 91.18 08/05/2002 So answer~s~~- ~' ~.' R. Thomas K~i~e ~ Sheriff of Cumberland County BALL MURREN CONNELL Sworn and subscribed to before me this ~2~ day of~,,~ ~2~ ~-~ A.D. Prothonotary NOTICE & COMPLAINT, PETITION FOR PRELIMINARY INJTJNCTION No. 2002-3594 Civil Term ELITE STAFFING SERVICES, vs. CHARLA K. BISHOP INC. Lebanon, PA, August 2, 2002 BALL, MURREN & CON-NELL P.O. Box 1108 Harrisburg, PA 17108-1108 (717) 232-8731 (Return to Cumberland Co. Sheriff) Docket Page 18162 STATE OF PENNSYLVANIA } COUNTY OF LEBANON} SS: Ferdinand J. Sammer, Deputy Sheriff, being duly sworn according to law, deposes and says that he served the within NOTICE & COMPLAINT, PETITION FOR PRELIMINARY INJUNCTION upon CHARLA K. BISHOP, the within named DEFENDANT, by handing a true and attested copy thereof, personally to her, on August 1, 2002, at 5:15 o'clock P.M., at 284 Fredericksburg Road, Jonestown (Bethel Township), Lebanon County, Pennsylvania, and by making known to her the contents of the same. Sworn to and subscribed before me this 2nd day of August, A.D., 2002 .~ .//.~ Notary Public I ' ' NOIARIA[ S£AL '~ PATRICIA t. HARTMAN, NOTARY pu~t~m ~ Laba~on, Lebanon Cou~ly I  SO ANSWERS, DEPUTY~ERI_FF ~ ~ _ SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced costs paid on 7/31/02 Check No. 37721 Amount 100.00 Costs incurred: Amount 54.18 Refund: Check No.12212 Amount 45.82 Ail Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 in The Court of Common Pleas of Cumberland County, Pennsylvania Elite Staffing Services, Inc fka Capital Area Temporary Services, Ina VS. charla K. Bishop SERVE: sane No. 02 3594 civil NOW, July 30, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the PIalntiff. Sheriff of Cumberland Couaty, PA Now~ within Affidavit of Service .,20 ,at o'clock M. served the upon by handing to a and made known to copy of the original So answers, the contents thereof. Sworn and subscribed before me this __ day of ,20 Sheriff of County, PA COSTS SERVICE /V[ILEAGE AFFIDAVIT ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Pennsylvania Corporation, Vo CHARLA K. BISHOP, an individual, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-3594 EQUITY ORDER OF COURT AND NOW, this 28t~ day of October, 2002, upon consideration of the attached letter from Thomas A. Capper, Esq., attorney for Plaintiff, the hearing previously scheduled for October 30, 2002, is cancelled. Thomas A. Capper, Esq. 2303 Market Street Camp Hill, PA 17011 Attorney for Plaintiff James A. Diamond, Esq. Suite 100 150 Corporate Center Drive P.O. Box 98 Camp Hill, PA 17001-0098 Attorney for Defendant BY THE COURT, f~jw ey Oler, Jr., J. :rc OCT 25 2002 4:37PM BSLL, MURREM, & COMMELL [7171 I~w Ol, zzc~s BALL, MURREN & CONNELL C~a~ I~.T,. P~-mmrr~VAm~ i701I P.O. BOX I10~ I'-Y..~u~s~.,-~o. P~m~s,~_.v,~-.~ 17108-1].08 VIA NACSIMILE & U.S. MAN. October 2:5, 2002 The Honorable J. Wesley 01er, Jr. Cumberland County Court of Common Pleas Cumberland Cotm~ Courthouse One Courthouse Square Carlisle, PA 17013 Re: Elite Staffing Services, Inc. v. Charla ~ Bishop Docket No. 2002-3594 Action in Equity Dear Sudge Oler: I write to inform you that Plainti/~Count~rclaim Defendant Elite Staffing Services and Defendant/Counterclaim Plaintiff Charla K. Bishop have reached an agreement in principle to settle all of the claims and counterclaims in the above referenced matter. The parties will be finalizing the documentation next week. However, it is certain that we will no longer need the Preliminary Injunction Hearing scheduled for Wednesday, October 30, 2002. James A. Diamond, Esq., counsel for Defendant/Counterclaim Plainti~ agreed that I should write to you to inform you of this agreement and that the hearing will be unnecessary. Should you require any further information on this matter please do not hesitate to contact me. Very lavaly yours, Thomas A. Cappcr Mr. Brian $. Gaughan (via fax only) James A. Diamond, Esq. (via fax only) 2OO3 Attorneys for Defendant: JAMES A, DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 ELITE STAFFING SERVICES, INC., formerly known as CAPITAL AREA TEMPORARY SERVICES, INC., a Penn- sylvania Corporation, Plaintiff/Counterclaim Defendant V. CHARLA K. BISHOP, an individual, Defendant/Counterclaim Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 3594 of 2002 CIVIL ACTION - EQUITY/LAW AND NOW, this behalf of Elite Staffing ORDER ~t/~ day of ~2x~, 200~__, pursuant to the Stipulation filed on Services, Inc., Plaintiff and Counterclaim Defendant, and Charla K. Bishop, Defendant and Counterclaim Plaintiff, being all of the parties to this action, it is hereby ORDERED AND ADJUDGED that the above-captioned case be, and hereby is, DIS- MISSED WITH PREJUDICE in its entirety, including all claims and counterclaims, with each party bearing its own costs. Jo 01-0'7-0.5