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Home My WebLink About95-00437 'l Ii " J ~ J: ~\~ SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS, , PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. qr, 'Ij 7 1:.P7 CIVIL ACTION EQUITY ,- ILl...,.... NICOLE S. PROBST, DEFENDANT 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 is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or obj ections 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. COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE 1 COURTHOUSE SQUARE CARLISLE, PA 17013 (717) 240-6200 mANt: G. RABel.lFt' ATrORNf,\'.AT.I,AW 5H" TIUNUU. ROAn ('.AMI'IIII.1.,I'A 17011 1 SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. i ~'. '13 '/ q...:t:/ --r;~,.- CIVIL ACTION EQUITY NICOLE s. PROBST, DEFENDANT COMPLAINT AND NOW, this :-]1 day ofndfL((,~, 1995, comes Plaintiff, Shelby C. Dunmire, ~b/a/ JLiomingnails, by the her attorney, DIANE G. RADCLIFF, ESQUIRE, and files this Complaint of which the following is a statement: 1. The Plaintiff, Shelby C. Dunmire, is an adult individual and the sole owner and proprietor of a nail and skin care business known as Bloomingnails, having a principal place of business located at 4401 Carlisle Pike, Camp Hill, Cumberland County, Pennsylvania. 2. The Defendant, Nicole S. Probst, is an adult individual residing at 14 McNaughton Drive, Duncannon, Perry County, Pennsylvania. 3. At all times herein relevant the Plaintiff has been in the nail and skin care service business, which business includes, but is not limited to nail and skin care services and sales of related products for men and women, which business services the Camp Hill, Mechanicsburg and surrounding areas. 4. On or about March 1, 1994, the Plaintiff and mANE G. ItAIlCLlH' ATTORNI:V.AT.J.AW SHI TItINI1U: RO"U r.AMI'IIIU., PA nOli 2 IlIAN.: G. RAIlCl,lH ArrnRNI:\'.AT.I.AW !HII TMINIH.[ IWAU CAP-n'llll..., I'A 171111 Defendant became associated wherein the Defendant became a trainee for the position of manicurist on a temporary basis to last until completion of the training program, at which time the parties would decide whether or not the Defendant would be employed as a full-time regular manicurist. 5. At the time the Defendant became a trainee of the Plaintiff's business, the Plaintiff advised the Defendant that if she were hired as a full-time regular employee she would be required to sign an employment contract containing certain restrictive agreements and on said date a copy of the employment contract was provided to the llefendant by the plaintiff for review. 6. On April 1, 1994, at the completion of the training program the Plaintiff agreed to hire the Defendant and the Defendant agreed to accept the Plaintiff's employment as a full-time regular employee as a manicurist, as the result of which the Defendant's responsibilities and duties and rate of P3Y were changed. 7. In consideration for the Plaintiff to hire the Defendant as aforesaid and in accordance with the understanding of the parties set forth in Paragraph 6 above, the parties entered into an Employment Agreement signed on and dated April 1, 1994, which agreement was in the same form as that provided to the Defendant on or about March 1, 1994. A true and correct copy of the Employment Agreement is attached 3 hereto, marked Exhibit "A" and made a part hereof. 8. The Defendant, in the aforesaid Employment Agreement, agreed that for a period of one (1) year after the termination of her employment with the Plaintiff that the Defendant would not disclose any information of the plaintiff, including, but not limited to, customer information, acquired by her during the period of her employment 9. The Defendant, in the aforesaid Employment contract, further agreed that for a period of one (1) year following the termination of her employment she would not call nor solicit nor disclose, either directly or indirectly, any of the customers of the Plaintiff. 10. The Defendant, in the aforesaid Employment Agreement, further agreed that for a period of one (1) year following the termination of her employment with the Plaintiff that she would not engage in the business of nail services or any other business competitive with the Plaintiff's business within a twenty-five (25) mile radius of the Plaintiff's place of business. 11. The Defendant, in the aforesaid Employment Agreement, further agreed that she would pay the employer liquidated damages of $10,000.00 for any breach of the aforesaid contractual agreements and $1,000.00 as liquidated damages in the event she terminated without good cause after having received training from the Plaintiff. DIANE G. RADCLIff ATTORNf,\,.^T.I.AW 'H" TRINIIU. A(}AU (:.\MI'IIII.I..I''\ 171111 4 12. On or about November 23, 1994, the Defendant terminated her employment with the Plaintiff. 13. On or about November 30, 1994, the Defendant began work as a nail technician with Chippen Nails, a nail salon located at 6500A Carlisle pike, Mechanicsburg, Pennsylvania, a location less than twenty..five (25) miles from the Plaintiff's place of business. 14. It is believed that the Defendant has solicited the customers of the Plaintiff in violation of the terms of the Employment Agreement. 15. The Defendant has further violated the terms of the Employment Agreement by engaging in nail care services at a location within twenty-five (25) miles of the Plaintiff's place of business within one (1) year of the date of termination of her employment with the Plaintiff. 16. The Plaintiff has no adequate remedy at law. 17. The plaintiff will be irreparably harmed if the JIIANE G, RAIlCl.IH ATroRNf:Y,AT.I.AW SH8 TRINH"': }lUAU (:A"II'IIIJ,J., I'A 17011 Defendant is not enjoined from contacting her customers and from participating in a nail service business within the twenty-five (25) mile radius agreed upon in the Employment Agreement lB. The Plaintiff is entitled to $10,000.00 in liquidated damages for the violations aforesaid as agreed upon in the Employment Agreement. WHEREFORE, Plaintiff respectfully requests your Honorable 5 Court to enter an Order: (a) enjoining the Defendant from contacting the Plaintiff's customers or otherwise disclosing any confidential information of the Plaintiff. (b) enjoining the Defendant from engaging in any business offering nail care services in an area within a twenty-five (25) mile radius of the Plaintiff's place of business as a principal, partner or employee. (c) requiring the Defendant to terminate her employment with Chippen Nails. (d) awarding the Plaintiff $10,000.00 in liquidated damages. (e) awarding the plaintiff attorney's fees and costs of suit. DIANE G. RAIlCLln' ATJ'llRNI:\'.AT.I.AW 3HI TRINIII.t: ROAn GAMI'UII.I"I'A 171111 6 ( I I: I' EMPLOYMENT AGREEMENT n THIS AGREEMENT made between _~ \~O\e.. l-Iro'oJ herein referred to as "Employee" and SHELBY C. DUNMIRE d/b/a BLOOMINGNAILS, whose principal place of business is located at 4401 Carlisle Pike, Camp Hill, Pennsylvania 17011, herein referred to as "Employer". Employer is engaged in the business of providing nail and skin care services and sales of related products for men and women, and maintains a salon located at 4401 Carlisle Pike, Camp Hill, Pennsylvania 17011. Employer has developed procedures, techniques, methods, products, and customer lists which are confidential and vital to the business. AGREEMENT 1 . EMPLOYMENT Employer hires Employee as a manicurist to perform nail services for Employer's customers. Employee accepts and agrees to such duties, subject to the supervision and d~rection of Employer. Further, Employee shall perform other duties including, but not limited to, attending salon meetings and educational workshops, shows, and daily salon cleaning, as may be assigned to Employee from time to time by Employer. AGREEMENT 2 - EMPLOYEE WORK Employee agrees to faithfully, l.ndustriously, and to the best of Employee' s ability, experience, and talents, perform all of the duties that may be required of and from Employee, pursuant to the express and implicit terms hereof, to the reasonable satisfaction of Employer. Such duties 1 EXHIBIT I~ shall be rendered at 4401 Carlisle Pike, Camp Hill, pennsylvania and at such other place or places as Employee shall in good faith require or as the interest, needs, business of opportunity or Employer shall require. i, l The em~oyment shall and end -I.j1l-l \ I following: AGREEMENT 3 - TERM OF EMPLOYMENT commence _~()I- i \ J , 19 9'5" 'but subject 19f1, to the A. If the Employee is absent from his/her employment without Employer's consent for more than four weeks in the aggregate during any fifty-two week period, the Employer may terminate the employment of the Employee. " B. The employment of the Employee may be terminated by the Employer at any time for good cause in the performance of the Employee's work, or in the event that business conditions dictate the reduction of the work force by Employer. C. The employment of the Employee may be terminated at any time during or at the end of the employment term, with or without cause, by either party upon giving thirty (30) days advance written notice of said termination. If the employment of the Employee is not terminated at the end of the term of this agreement, it shall continue in effect for a new term of the same duration and shall continue to renew automatically thereafter under the same terms and conditions herein set forth. 2 AGREEMENT 4 - COMPENSATION OF EMPLOYEE Employer shall pay Employee, and Employee shall accept from Employer, in full payment for Employee's services hereunder, a compensation program as described in Addendum A, which is attached hereto. AGREEMENT 5 - OTHER EMPLOYMENT During the term of employment of the Employee by the Employer, the Employee shall not directly or indirectly engage in or be engaged by or be in the employment of any other person, firm or corporation engaged in a business similar to Employer's business without express written consent of Employer. . AGREEMENT 6 - CONFIDENTIAL INFORMATION Employee agrees that during Employee's employment, and for a period of one year thereafter, Employee will not disclose any information or data concerning the practices, procedures, and methods of operation of Employer or customers of Employer, disclosed to or acquired by her in confidence at any time during the period of Employee's employment. Further, Employee agrees that for and during the entire term of Employee's employment that any and all files, materials and information regarding the practices, procedures and policies of Employer and any and all customer lists and records shall be considered and kept as the private and privileged records of the Employer and will not be divulged to any firm, individual or institution. 3 Further, Employee agrees that on termination of her employment for any cause whatsoever, she will surrender to Employer in good condition any record or records kept by her containing the names, address and other information with regard to customers or potential customers of Employer served by Employee. Further, for a period of one year immediately following the termination of the employment, Employee shall neither call, nor solicit either for Employee or any other,person or firm, any customers of Employer on whom Employee learned during her employment hereunder, nor shall Employee make known to any person or firm, either directly or indirectly, the names or addresses of any such customers or any information relating in any manner to Employer's trade or business relationship with such customers. , AGREEMENT 7 - NON-COMPETITION Employee agrees that for a period of one year after termination of employment with Employer in any manner, whether with or without cause, Employee will not, within a twenty-five mile radius of any salon owned by Employer, its successors or assigns, directly or indirectly, engage in the business of nail services or in any business competitive with Employer for a period of one years. Directly or indirectly engaging in the business of nail services or in any competitive business shall include engaging in business as owner, partner, or agent, or as Employee of any person, firm or corporation engaged in such business. If, however, any of the foregoing provisions should be held to bo illegal, invalid or unonforceable because of time 4 limitations and geographical area such provisions shall nonetheless be effective and enforceable for the period of time and ill such geographical area as may be held to be reasonable by any court of competent jurisdiction. AGREEMENT 8 - LIQUIDATED DAMAGES On the breach of Employee of any of the terms and conditions of agreements 5, 6 or 7 of this employment agreement, Employee shall pay to Employer the sum of ten thousand dollars ($10,000.00) to compensate Employer for injury by reason of such breach, it being impossible to ascertain or estimate the entire exact cost, damage or injury which Employer may sustain by reason of the breach, and such sum is agreed on as compensation for injury , suffered by Employer, and not as a penalty. In the event the Employee shall terminate her employment within one year of her receiving training from Employer, and such termination is without good cause arising out of Employer's actions, then Employee shall pay to Employer the sum of one thousand dollars ($1,000.00) to compensate Employer for injury by reason of having provided such training and not having received the benefit of the training of the Employee, which sum is agreed to be paid as liquidated damages and not as a penalty, it being impossible to ascertain or estimate the entire exact cost, damage or injury which the Employer may sustain by reason of said termination. 5 \ AGREEMENT 9 - INJUNCTIVE RELIEF Employee acknowledges that the remedies at la~r for any breach by Employee of the provisions of agreements 5, 6 and 7 will be inadequate relief against Employee and that in the event of breach of said agreements 5, 6 and 7, Employer shall further be entitled to injunctive relief against Employee and in which event Employee aCKnowledges and warrants that Employee will be fully able to earn and adequate livelihood for Employee's self and dependents if the terms of these agreement are specifically enforced by way of injunction entered against Employee. ARTICLE 10 - CUMULATIVE REMEDIES . The remedies of Employer set forth in agreements 5, 6 7, 8 and 9, as well as those remedies provided for by law or in equity are understood and agreed to be cumulative in nature and may be exercised jointly and concurrently and shall not be deemed to be in the alternative. ARTICLE 11 - SURVIVAL The agreements set forth in agreements 5, 6, 7, 8, 9 and 10 are given by Employee to Employer in consideration of the employment of Employee or in consideration of the training of Employee or giving of other job-related promotion or benefit. The promises and covenants set forth in said agreement shall survive and remain enforceable against Employee even though: the employment of Employee shall hereafter be terminated; and/or the parties shall cltecute a ncw employment agreement unless said agreement 6 specifically negates agreements 5, 6, 7, 8 and 9; and/or upon any renewal of this agreement. AGREEMENT 12 - SUCCESSORS AND ASSIGNS This agreement shall extend to and bind the successors and assigns of the Employer, but shall not be assignable by the Employee due to the nature of Employee's obligations hereunder as personal services. AGREEMENT 13 - SEVERABILITY Each agreement set forth herein is separate and distinct from every other agreement set forth herein and in the event of invalidity of ,any agreement, the rema~n~ng agreement shall be deemed to be independent and divisible and in full force and effect. AGREEMENT 14 - MODIFICATION AND WAIVER This agreement or any provision hereof may be amended, supplemented or modified only by a writing signed by both parties and may be waived only by a writing signed by the party to be bound thereby. A written waiver of any provision shall be valid only in the instance for which it is given and shall not be deemed to be a continuing waiver or construed as a waiver of any other provision. AGREEMENT 15 - ENTIRE AGREEMENT Employee has read this agreement and fully understands the terms and conditions set forth herein. This agreement 7 sets forth the entire understanding and agreement between the parties and supersedes all previous agreements, oral or written, and all other communication between the parties relating to the subject matter hereof. IN WITNESS WHEREOF, the parties a~ment at Camp H~~l( Pennsylvania ....: \ , 19~. WITNESS: BLOOM GNAILS have executed this on the .J.i, day of /!1 ~f~/4--- r~ s..ff/.~ I' . . t2;~jNM;?:;'> EMPLO E . o VERIFICATIOP SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS verifies that the statements made in this COMPLAINT are true and correct. SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DIANE G. RADCLIff ATTORNEY-AT-LAW 'UII TRINUl..E ROAn CAMP IIIU,. PA 17011 A ~ . '\ ..'! e, ~ '" \"j \ :,. ..... . ;!" :.- :. t """ "",,, ;-..1 ,. C'. ~ ,:1) r-- ,-.1 7- (0)' -, ......, I; ~j]~ ~ ~:1l~ .~Q::l t.'J ~ i=!:E ~~~! '.s/aks/Drobst ,pos IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAIL'S . . Plaintiff . NO. 95-437 EQUITY TERM . V. . . NICOLE PROBST Defendant . CIVIL ACTION - EQUITY . ORDER AND NOW, this day of , 1995, upon hearing the arguments of respective counsel, it is hereby ORDERED that Plaintiff's complaint is dismissed with prejudice in its entirety. J. '_,/aks/probst.po, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAIL'S Plaintiff NO. 95-437 EQUITY TERM v. NICOLE PROBST Defendant CIVIL ACTION - EQUITY DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Nicole S. Probst, by and through her counsel, Hepford, Swartz & Morgan, and files these Preliminary Objections to Plaintiff's Complaint and in support thereof avers as follows I 1. Plaintiff. commenced this action by filing a complaint in the Court of Common Pleas of Cumberland county on January 27, 1995. 2. plaintiff avers that Defendant is employed as a "nail technician" contrary to the terms of an employment agreement and is seeking, among other things, an equitable order enjoining Defendant "from engaging in any business of fering nail care services in an area within a 25 mile radius of the Plaintiff'S place of business in (Camp Ilill, Pennsylvania], as a principal, partner or employee," an equitable order requiring Defendant to terminate her employment with her current employer, an equitable order awarding $10,000.00 in damages, and an equitable order awnrrllng atLornoys' fees. - I.s/aks/probst .pOS A. Motion strike for leqal Plaintiff's Complaint to insufficiently of a pleadinq (demurrer). 3. Plaintiff bases her entire claim on a purported contract containing insufficient consideration which completely lacks mutuality and is illusory in that it nowhere provides for a specific wage or sets forth a compensation program for Defendant. 4. Plaintiff bases her entire claim on a purported contract containing insufficient consideration which completely lacks mutuality and is illusory in that it permits Plaintiff to fire Defendant "at any time" for either good cause or "in the event that business conditions dictate the reduction of the work force by the employer." Plaintiff's Exhibit A at 2. 5. Plaintiff bases her entire claim on a purported contact which is clearly unreasonable in its scope as it would preclude Defendant from working as a simple nail technician or a manicurist, or even working in a nail salon, within a 25 mile radius of Plaintiff's place of business in Camp Hill, Pennsylvania, and which is the equivalent of an area of 1,963.5 square miles. 6. plaintiff bases her entire claim on a purported contract whlch is clearly unconscionable as it would, if upheld, effectively /. I.s/nks/probst,pos preclude Defendant from any employment of any kind as a simple nail technician or manicurist in the entire Harrisburg area. 7. Piaintiff bases her entire claim on a purported contract which, if upheld, would clearly cause an impermissible and excessive restraint of trade by effectively precluding Defendant from any elllployment as a simple nail technician in the entire Harrisburg area, and is therefore directly violative of public pol icy. B. Plaintiff in her business of nail care services unquestionably has no protectable or legitimate business interest in preventing Defendant from being employed as a simple nail technician or manicurist. 9. Plaintiff unquestionably has no legitimate interest which must be protected by a court from any alleged unfair appropriatlon by Defendant. WHEREFORE, Defendant requests this Honorable Court enter an Order dismissing Plaintiff's Complaint in its entirety with prejudice due to its legal insufficiency. B. Motion to strike Plaintiff's Complaint for leqal insufficiency of a pleadinq (demurrerl. 3 ., l_s/nk,/Drobst,PGs 10. Ptaintiff basis her entire claim on a purported contract. 11. 'J'here would thus exist a full, complete and adequate non- statutory remedy of law precluding this action ill equity. WHEREFORE, Defendant requests this I~norable Court enter an Order dismlssing Plaintiff's complaint in its entirety with prejudice due to the existence of an adequate non-statutory remedy at law. C. Motion to strike for leqal insufficiency of a pleading. 12. In paragraph 14 of Plaintiff's Complaint, Plaintif f avers that Defendant has "solicited" her customers. 13. Nowhere does Plaintiff aver any facts in support of this statement, such as how and when such customers were "solicited" or the number and identity of such customers. 14. Defendant is prejudiced by this gross lack of specificity in Plaintiff's complaint. WIIEREFORE, Defendant requests this l~norabJe Court to enter an Order striking Paragraphs 9 and 14 and subparilgraph (a) of the ilrI dilmnum clause of Plaintiff's Complaint, or alternatively, roquiro Plaint! ff to file a more specific pleadiug with regard to 4 . 1.l/ak~/prob't.PO' Defendant's alleged "solicitation" of Plaintiff':; customers. D. Motion to strike for leqal insufficiency of a pleading. 15. Plaintiff seeks an equitable order awal:ding "$10,000.00 in liquidated damages." 16. plaintiff avers that Defendant worked for her for a total of approximately nine months. 17. Plaintiff has nowhere made any attempt to ascertain or explain her damages, if any. 18. The aforesaid "$10,000.00 in liqUidated damages" is clearly nothing more then a penalty attempted to be imposed upon Defendant and is clearly unconscionable. WHEREFORE,' Defendant requests this Honorable Court to enter an Order striking subparagraph (d) of the ad damnum clause of Plaintiff's complaint. E. Motion to strike for leqal insufficiency at a pleadinq. 19. plaintiff seeks an order awarding attorneys' fees in this matter. 5 J_I/akl/problt,DOI 20. Plaintif f can point to no legal or f actual authority supporting her claim for attorneys' fees. 21. There is clearly no support for an award of attorneys' fees in this case. WHEREFORE, Defendant requests this Honorable Court to enter an Order striking subparagraph (e) of the ad damnum clause of Plaintiff's Complaint. Respectfully submitted, HEPFORD, SWARTZ & MORGAN Date: 2.-f(.... l)~, .M Andrew K. Stutzman Supreme Court I.D. 2922 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108-0889 (717) 234-4121 ATTORNEYS FOR DEFENDANT 6 SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 95-437 EQUITY TERM CIVIL ACTION EQUITY NICOLE S. PROBST, DEFENDANT PLAINTIFF'S PRELIMIIlARY OBJECTIONS TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Plaintiff, Shelby C. Dunmire, t/d/b/a/ Bloomingnails, by and through her attorney, Diane G. Radcliff, Esquire, and files these Preliminary Objections to Defendant's Preliminary Objections to Plaintiff's Complaint as follows: A. MOTION TO STRIltE DEFENDANT'S PRELIMINARY OBJECTION A FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT. 1. The Defendant's Preliminary Objection A is an impermissible demurrer because it raises matters outside of the scope of Rule 1028 in that: (a) The objection incorrectly alleges that under the law the giving of employment constitutes consideration for the non-competition agreements, all of which appears on the face of the agreement and is alleged in the complaint. Use of a demurrer is limited to those cases where the lack of consideration is apparent on the face of the IlIAN.: G. RADCI.IFF ATTORNF.\,.AT.I.AW SU8 TRINIII.t: RnAU (:AMr 1111.1.. I'A 17011 1 pleading. A demurrer may not be used to contest consideration appearing on the face of the pleading. (b) The objection incorrectly raises affirmative defenses including lack of consideration not apparent on the face of the pleading, mutuality, unreasonableness as to scope, unconscionability, excessive restraint of trade and lack of legitimate protectable business interests all of which may not be raised by way of a preliminary objection, but rather must be plead as affirmative defenses in a new matter pursuant to Rule 1030. WHEREFORE, plaintiff requests this Honorable Court to strike off and deny Defendant's Preliminary Objection A in the form of a demurrer. B. MOTION TO STRIKE DEFENDANT'S PRELIMINARY OBJECTION B FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT. 2. The Defendant's preliminary Objection B is an impermissible demurrer because it raises matters outside of the scope of Rule 1028 in that: (a) The demurrer is based on the alleged existence of an adequate remedy at law and, therefore, is a challenge to the jurisdiction of IlIANE G. RAIlCJ.lFt' ATfORNF.\',AT,LAW SUlI TRINIII,t: ROAn C;,\"IIII11I.1., IIA 17011 2 the equity side of the court or to the theory or measure of relief. Such claims are not permitted to be raised by way of preliminary objection. WHEREFORE, Pl~intiff requests this Honorable Court to strike off and deny Defendant's Preliminary Objection B. C. MOTION TO STRIKE DEFENDANT'S PRELIMINARY OBJECTION C FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT. 3. The Defendant's Preliminary Objection C is an impermissible objection in the nature of a motion to strike or a motion for a more specific pleading because it raises matters outside of the scope of Rule 1028 in that: (a) Preliminary objections may not be used to obtain facts or information from the Plaintiff of which the Defendant has as much knowledge as the Plaintiff, which is true in this case since the offending conduct was solicitation of the Plaintiff's customers by the Defendant, about which the Defendant would be as, if not more, knowledgeable than the Plaintiff. (b) preliminary objections may not be used to obtain evidentiary matters, but rather are limited to advising the Defendant of the issues the Defendant will meet at trial. A delineation of the names and telephone numbers of the IlIANE G. RAIlCLlff A"-WIINI:\'-AT.I,AW ~H' TM.INUU: IUlAn (:AMP 11I1.1.. I'A 171111 3 IlIANE G. RAIlCLIFF ATTORNI:V.AT.I.AII' '44ft TRINIIU. RfJAU CA~II' 1111.".1''\ 171111 Plaintiff's customers solicited by the Defendant is evidentiary in nature and, therefore, properly obtainable through discovery, not through preliminary objections. WHEREFORE, the Plaintiff requests this Honorable Court to strike off or deny Defendant's Preliminary Objection C. D. MOTION TO STRIKE DEFENDANT'S PRELIMINARY OBJECTION D FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT. 4. The Defendant's Preliminary Objection D is an impermissible objection because it raises matters outside of the scope of Rule 1028 in that: '(a) A preliminary objection may not be used to contest the wrong theory or measure of damages since the Defendant's objection is based on an objection to the inclusion of liquidated damages. That objection is impermissible since it is a contest as to the theory or measure of damages. (b) The preliminary objection may not be used to raise affirmative defenses to a complaint properly raised in an answer or new matter. A claim that the liquidated damages claimed are a penalty would be an affirmative defense which can only be determined by exploring the merits of this case and, therefore, it is impermissible to raise 4 mAN.: G. "AIlCI.IH' ATrORNF.\'.AT.I.AW 'HA TRINUU. "(lAU (:AMI'IIII.1" I'A 171111 them in a preliminary objection. (c) A preliminary objection in the nature of a demurrer may not be used to strike off a portion of the claims, but rather is limited to testing the legal sufficiency of the pleading as a whole. since requesting a striking of the liquidated damages claims pertains to only a portion of the claim, not the claim as a whole, the Defendant may not seek that this claim be stricken by way of preliminary objection. (d) A preliminary objection in the nature of a motion to strike may not be used to strike off a measure or theory of damages, the applicability of that rule being limited in scope to matters of form not substance. Since the objection pertains to the measure of damages it goes to substance not form and, therefore, is impermissible as a motion to strike. WHEREFORE, the Plaintiff requests this Court to strike off and deny Defendant's Preliminary Objection D. E, MOTION TO STRIKE DEFENDANT'S PRELIMINARY OBJECTION E FOR FAILURE TO CONFORM TO LAN OR RULE OF COURT. 5. The Defendant's preliminary Objection E to strike the Plaintiff's claims for attorney's fees is an 5 impermissible preliminary objection in that: (a) A preliminary objection may not be used to contest the nature or theory of relief or damages claimed. Since the Defendant's objection is as to whether or not Plaintiff's damages can include attorney's fees, that objection goes to the nature or measure of the damages and that objection is impermissible. (b) The preliminary objection may not be used to raise affirmative defenses to a complaint properly raised in an answer or new matter. A claim that the plaintiff has no right to attorney's fees would be an affirmative defense and it is impermissible to raise this defense in a preliminary objection. (C) A preliminary objection in the nature of a demurrer may not be used to strike off a portion of the claims, but rather is limited to testing the legal sufficiency as a whole. Since the Defendant's objection only contests the right to attorney's fees and not whether the pleading as a whole states a cause of action upon which rel\ef can be granted the objection is impermissible as it seeks to strike off a portion of the claim rather than the claim as a whole. DIANE G. RAIICI,IU' A,.ORNt:\'.AT.I.AW !H81'RINIII.l: MilAn ('.AMP 11I1.1..1',\ 17011 6 = ,',' .' I':, '~. ~.~_'. \".:....1', ' , ','" "..u.;;.:':..:::::-;::=~~-~~ "".', (d) A preliminary objection in the nature of a motion to strike may not be used to strike off a measure or theory of damages, the applicability of that rule being limited in scope to matters of form, not substance. Since the right to attorney's fees goes to substance (merits) not form and is impermissible as a motion to strike. WHEREFORE, the Plaintiff requests this Honorable Court to strike off and deny Defendant's preliminary Objection E. Respectfully submitted, G. RADC F, ESQUIR Trin le Road Camp . , PA 17011 (717) 737-0100 I.D. No. 32112 Attorney for Plaintiff DIANE G. RAIlCl.IH ATTlIRNf.V.AT.I,AW UUI TMINUI.I: ROAn (:A~II' 11I1.1., I'A 17UII 7 DIANE C. RADCLIff ATTORNEY.AT.LAW JHI TRINhU. ROAn CAMP IIII.L. PA 17011 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil procedure, by depositing a copy of the same in the United states mail, Shiremanstown, Pennsylvania, with first-class postage, prepaid, as follows: Andrew K. stutzman, Esquire HEPFORD, SWARTZ'& MORGAN III North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 ~ ( DI CLIFF, ESQUIRE 34 8 Road Cam 11 A 17011 (717) 737-0100 I.D. No. 32112 Dated: 3/ftJ/QS U'> en " (I :r.= oc:( m In CO ,. .r >- ..(!; hI r;.: ~., S :~~:i ::;?':~J0 .:.~ ~~; :.1 ;~~ , . ~~: lln I:') W(.) t.O a: -. :>..::: ~j]~ ~ ~.!I~ c;i~~ J]~k \ PRAECIPE FOR LISTING CASE FOR ARGU~IENT l~lust be tYpewritten :ll1d 5ubmitted In duplic:ltc I TO TIlE PROTHONOTARY,'OF Ct:MBERL..\.1'1D COU:-ITY: Ple:ue !Ist the within matter for :he next: o P:e.Tri:1i Argument C~Urt [[j Argument Ccurt ------------------------------------- CAPTION OF CASE , (entire c::\pdon must be stated In full) SHELBY c. DUNMIRE, t/d/b/a BLOOMINGN'lIILS' .".. ..., '" .."""\." " W'1 (Pl:1lntU'i) ., . vs. "" "'- ...' ~..~) -"0 ::x: ,:0' NICOLE S. PROBST I . _ ~ " I .~ .. J. "':..' ~~ c.D <J'1 (Det"endllllt) vs. CfS :-Ie. *-437 Equity Term 1. Sute matter to be 3f3Ued (L e.. pl:1lntlffs modon (or new tri:l1. defendant's dernumr to ,om!'Wnt. ttc.): Defendant's Preliminary Objections to Plaintiff'S Complaint and 'Plaintiff's Preliminary Objections to Defendant's Preliminary ., Identlfycowue! who wUl ugue "ue: Objections to plaintiff's Complaint (.) for pla.lntU"i: Diane G. Radcl i if, Esquire Address: 3446 -Trindle Road, Camp Hill, PA 17011 (b) fordefentbnt: Andrew K. Stutzman, Esqui're' Address: 111 N. Front Street, Harrisburg, PA 17106-0669 3. I will notify :ill p.rties in writing wi:llin two days Ill.t WS '::LIe has beer: listed for ugument._ 4. Argument Court 03tel May 31, 1995 C3ll of Argument List D3t .{ \ . , .-_..,,_""1, '. ." . . . . " I,A W OFFlCr.~ HEPFORD. SWARTZ & MORGAN III NORTIl FIIONT STRnT r:o. BOlCll'89 IIARRISBURG, rENNsVI.VANIA 17101,0119 TEI.EPIIONE 717 ZJ4-4m /"' 1AY 19 1995 \1J }(>/ .' ...."'..,...._-~..~ I' . I ...., . .....~- ,,, .. . -.... - . .... . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHELBY C. DUNMIRE tibia BLOOMINGNAIL'S No. 95-437 EQUITY TERM Plaintiff v. CIVIL ACTION - EQUITY N~COLE PROBST Defendant DEFENDANT'S BRIEF IN SUPPORT OF ITS PRELIMINARY OBJECTIONS AND OPPOSING THOSE OF PLAINTIFF I. STATEMENT OF FACTS AND PROCEDURAL HISTORY This action in equity arises out of an "employment agreement" constituting a restrictive covenant and containing a liquidated damages clause for $10,000. Said agreement is attached to Plaintiff's Complaint as Exhibit A. The agreement provided employment for one year as a full-time manicurist in a nail salon. plaintiff contends that Defendant has now violated said agreement by work'ing as a "nail technician" for another nail salon. See, !!..&., Plaintiff's Complaint, 113. Plaintiff seeks, among other things, an equitable order enjoining Defendant from working in any capacity for any business offering "nail services" within a "25 mile radius of any salon owned by [Plaintiff], . . . directly or indirectly," an equitable order requiring Defendant to terminate all employment with her current employer, an equitable order awarding $10,000 in "liquidated damages", and an equitable order awarding attorneys' fees. . Defendant accordingly filed timely preliminary objections whereupon plaintiff responded with preliminary objections to Defendant's preliminary objections. I, , ( i I , f II. QUESTIONS PRESENTED A. Is Plaintiff's pleading legally insufficient where it seeks to preclude Defendant from working in any capacity for "any business offering nail care services in an area within a 25 mile radius of any salon owned by [Plaintiff], directly or indirectly" ? Suggested answer in the affirmative. B. Should Plaintiff's request, for an equitable order awarding $10,000 in "liquidated damages" be struck where said claim is based solely on a contractual and adequate non-statutory remedy at law, notwithstanding that plaintiff is proceeding exclusively in equity, or should Plaintiff's claims for equitable relief be struck as there therefore exists an adequate remedy at law? suggested answer in the affirmative. c. Should Plaintiff's averment that Defendant has "solicited" Plaintiff's customers be either struck or' be given greater specificity where said allegation is totally unsupported by any facts in support thereof and Defendant is prejudiced thereby? ~ Suggested answer in the affirmative. D. Should Plaintiff's request for an award of attorney's fees be struck where no legal or factual authority exists to support said claim? suggested answer in the affirmative. I II . ARGUMENT A. Plaintiff's pleading is legally insufficient as it seeks to preclude Defendant from working in any capacity for "any business offering nail care services in an area within a 25 mile radius of any salon owned by [Plaintiff], directly or indirectly. 2 ,- .. The standard for considering Defendant's demurrer is well- settled: "[Tlhe question presented by the demurrer is whether, on the facts averr.ed, the law says with certainty that no r.ecovery is possible." Cumberland Valley School Dist. v. Hall-Kimbrell Environmental Services, Inc., 433 Pa. Super. Ct. 38, 40, 639 A.2d 1199 (1994) (quoting Fof!yqen v. R. Zemel, M.D., 420 Pa. Super. Ct. 18, 32, 615 A.2d 1345 (1992), alloc. den., 535 Pa. 634 (1993)). In addition, A demurrer admits the truth of the relevant and material facts averred in the pleading demurred to. It does not admit their sufficiency, nor does it admit irrelevant and immaterial matter pleaded, nor the legal conclusions ., sought to be drawn from the facts. Henzel v. Patterson Buildinq & Loan Ass'n. No.2, 128 Pa. Super. Ct. 531, 532, 194 A. 683 (1937) (emphasis in original). See also Whitmer v. Bell Telephone Co. of pa., 361 Pa. Super. Ct. 282, 286 n.3, 522 A.2d 584 (1987) (a demurrer does not admit legal conclusions). Only "reasonable inferences" from the facts may be accepted as true. Id. Thus, legal allegations are not admitted, and a demurrer will be sustained if the facts pleaded and their reasonable inferences cannot support Plaintiff's action. As stated, Plaintiff's claim is entirely based on a restrictive covenant which attempts to preclude Defendant from being employed in any capacity by any business providing "nail services" within a "25 mile radius of any salon owned by [Plaintiff I, . . .. directly or indirectly." Plaintiff's Exhibit A at 4. As Plaintiff's current store is located in Camp Hill, Pennsylvania, Plaintiff's covenant precludes Plaintiff from work :. 3 ",,'----- in the entire Harrisburg area, including Carlisle and Hershey, or an area of 1,963.5 square roilea, based on the area of the 25 mile radius. In addition, as stated, Plaintiff concedes Defendant now works merely as a "nail technician" which she contends violates the agreement, notwithstanding that Plaintiff also concedes Defendant previously worked for her as a full-time manicurist, as was provided in the agreement. Clearly this is an absurd restriction and Plaintiff's cause of action is ridiculous. It is well-settled that "[b]ecause of the inherently unequal bargaining positions of the parties, [PennsylvanIa courts] have consistently subjected covenants of non-competition between employees and their employers to close scrutiny." ReadinQ Aviation Service, Inc. v. Bertolet, 454 Pa. 488, 492, 311 A.2d 628 (1973). See also Davis v. Buckham, 80 Pa. Super. Ct. 106, 114, 421 A.2d 427 (1980) ("[C]ovenants not to compete must be strictly construed.) This is so "because restrictive covenants are a partial restraint upon the free exercise of trade, [thus courts] have frequently stated that they should be strictly construed, particularly when such contracts are ancillary'to an employment agreement. . " . . Hayes v. Altman, 438 Pa. 451, 454, 266 A.2d 269 (1970). In addition, A general covenant not to compete . . . imposes a greater hardship upon an employee than upon a seller of a business. An employee is prevented from practicing his trade or skill, or from utilizing his experience in the particular type of work with which he is familiar. lie may encounter difficulty in tranaferring his particular experience and training in another line of work, and hence his ability to earn a livelihood is seriously impaired. Further, the employee will usually have few resources in reserve to fall back upon, and he may find it difficult to uproot himself and his family in 4 .' order to move to a location beyond the area of potential competition with his former employer. Contrariwise, the mobility of capital permits the businessman to utilize his funds in other localities and in other industries. Id. at 454-55, 266 A.2d 269 (quoting Morgan's 1I0me Equipment Corp. v. Martucci, 390 Pa. 6lB, 631-32,136 A.2d B3B (1957)). Clearly a restriction which expressly precludes Plaintiff from any work whatsoever for any business providing any nail services within essentially this entire metropolitan area is ridiculously unreasonable and unconscionable on its face. plaintiff concedes Defendant is only presently working as a simple "nail technician" and not even as a full-time manicurist as she did when working for plaintiff and as stated in the agreement. No inference from Plaintiff's facts could reasonably justify her cause of action seeking Plaintiff to be barred from any work in this area. Any ruling to the contrary suggests a significant injustice as it would essentially force Plaintiff to move out of the area if she wanted to continue in her chosen field as even a simple nail technician, as Plaintiff avers she currently does. ,Y Indeed, plaintiff avers that Defendant currently works only as a "nail technician", and not even as a full-time manicurist as she was when employed by Plaintiff and as set forth in the agreement. Accordingly, In most employments, restrictions on working in any capacity for a competitor will be viewed as imposing a restraint more extensive than any legitimate protectible interest of the employer. 20 P.D.F. 3d at 729. Accord, 54 Am. Jur. 2d, Monopolies, Etc. 554B. Thus, the fact that Plaintiff seeks to preclude Defendant 5 . ,v from now working as n simple nail technician when Defendant worked for Plaintiff as a (ull-time manicurist compellingly demonstrat,es that this "agreement" cannot be enforced in any way under any reasonable inference of the Plaintiff's well-pleaded facts. This sor.t of gratuitous overbreadth militates against enforcement because it indicates an intent to oppress the employee and/or to foster a monopoly, either of which is an illegitimate purpose. An employer who extracts a covenant in furtherance of such a purpose comes to the Court of Equity with unclean hands and is, therefore, not entitled to equitable enforcemont of tho covonant. Peripheral Dynamica, 254 I'a. Supor. Ct. at 322, 385 A.2d 1354 (Sidco Paper Company v. Aaron, 465 Pa. 586, 599, 351 A.2d 250, 257 (1976)). Likowiao, "ovorly broad covonants not to compete deprive a man of hia opportunity to make a living, and are thus unreaaonablo Iwd all a rooult unenforceable in equity." Krauss, 434 Pa. at 407, 254 A.2d 1. Cf. Davis, 280 Pa. Super. Ct. at 114, 421 A.2d 427 ("[C)ovonanto not to compete must be strictly construod."). In this rogard, it is also important to note that tho agroomont only provides for reformation of its time and goographical llml.tatlonll and makes no provision for reformation of tho cllpllc.\.ty of omploymont. 'rhus, in light of the foregoing, an agroomont which on its faco attempts to impose such a ridiculous rootrIlltion Ilnd procludo Dofendant from even ~Iorking as a nail techn Lc Illn whon ahe formorly worked as a full-time manicurist, cllnnot nuntllin Plaintiff's attempted cause of action. Similarly, it in hard to 1100 how, undor any reasonable inference and in light of thl! aforolll1l,d rulon of low, that Defendant could even be violating tho 11l]t:'oomont when plaintiff concedes Defendant only . 6 presently works as a nail technician, yet was previously employed as and, as set forth in the agreement, as a full-time manicurist. Moreover, "there is additional requirement for an enforceability of such [restrictive'] covenants . That is, . . . such covenants must serve to protect a legitimate, i.e. a legally protectible, interest of the employer." Thermo-Guard, I nc . v. Cochran, 408 Pa. Super. Ct. 54,64, 596 A.2d 188 (1991). See also Krauss v. M.L. Claster & Sons, Inc., 434 Pa. 403, 407, 254 A.2d 1 (1969); Peripheral Dynamics v. Holdsworth, 254 Pa. Super. Ct. 310, 316, 385 A.2d 1354 (1978) (citing cases). Thus, If an employer does not have a legitimate business interest in preventing a former employee from competing honestly, an employee anti-competition covenant may not be enforced. Rather, to obtain enforcement of an anti-competitive covenant in an employment agreement, the employer must demonstrate that he or she has an interest which must be protected from unfair appropriation by ,former employees. 20 P.O.F. 3d 705, 717 (emphasis in original). In this regard, That an employee has no special skill tends to show the unreasonableness of his post-employment anti-competitive covenant. Moreover, an employer cannot secure enforcement of an anti-competitive covenant to prevent the employee from using the skill or knowledge acquired or improved during the employment, even through a course of instruction in the employment. 54 Am. Jur. 2d, Monopolies, Etc. S548. In addition, To establish that the employee's services are special, unique, or extraordinary within the meaning of this rule, it will not suffice to show merely that the employee excels at his or her work or that the employee's performance is of high value to the employer. At the very least, it must appear that the employee's services are of such a character as to make replacement of the employee virtually impossible. Moreover, an employer cannot secure enforcement of an anti-competitive covenant to prevent the employee from using the skill and knowledge acquired or improved during the employment, even if the employee was trained or instructed by the employer. As stated by one court, "[i]t is permissible for one to use the 7 ~ ., oxpodonco nnd knowlodge gained during a period of employment. Jo:xporlorwo nnd knowledgo thus acquired as an employee does not hocomo thl! pl:oporty of the employer." . . . I"or oxample, it has been held that there is no protoctlhlo employer interest in the specialized skills of omployooll l.n common occupations such as auto mechanic, machine tool oporntor, or paralegal, regardless of the employee's lovol o[ proflcloncy. Other employees whose services have hooll hold 1I0t to be unique, special, or extraordinary include nn 0119 Lnoer specializing In applications for industrial mixing oqul.pmont, n prill tor of fabric designs, a theatrJ.cal booking ngollt, nnd n okilled watch artisan. 20 P.O.I'. 3d at 7?6-727 (footnotes omitted). Accordingly, with nil due reopoct to the parties, there should be little question, under OilY [actual inference, that simple nail care work is not so "opecinl, unique, or extraordinary" as to be legally protectible by this 1I0norable Court. In ndditioll, "[t]he absence of trade secrets [also] tends to Dhow the unreasonableness of the covenant." 54 Am. Jur. 2d, Monopolles, Etc. S547. In this regard, "[ t]o deserve protection, , . . the secrets must be more than the general secrets of the trado not known to the general publiCI they must be the employer's oxe;lusivo secrets." rd. 'fhe Restatement of 'l'orts defines a "trade secret" as "allY formula, pattern, device or compilation of information that is used in one's business," from which the owner derives a competitive advantage over those without the information and which is maintained by the owner as a secret. See Restatement of Torts S757, comment b (not superseded by Restatement (Second) of 'l'orts). 'l'hus, a mere general knowledge of the employer's business, or training of an employee in the employer's methods, does not ohow accoss to any protectible trade secretsl and the desire of an employer to prevent an employee from using common o p information gained during employment is not sufficient to justify enforcement of an employee's covenant not to compete. 20 P.O.F. 3d at 719. Again, under any reasonable inference of Plaintiff's well-pleaded facts, Plaintiff surely has no such legally protectible interest as to justify her cause of action. Furthermore, Plaintiff avers that Defendant only worked full- time for her from April 1, 1994 until November 23, 1994, or a period of under eight months, and previously worked on only a temporary basis. In this regard, note: In some cases, depending on the legitimate business interests of the former employer sought to be protected, the duration of employment may be a factor to be considered, with a brief term of employment tending to show the unreasonableness of a non-competition covenant in appropriate circumstances. 20 P.O.F. 3d at 737. Thus, again, under any reasonable inference of Plaintiff's well-pleaded facts, Plaintiff's restrictions sought are unquestionably unreasonable. Furthermore, it is noteworthy that said employment agreement does not include any "c..Jmpensation program" as, although such a "compensation program" is referenced in said agreement, it is nowhere attached to the agreement or Plaintiff's Complaint and, indeed, does not even exist. 'Similarly, the contract permits Plaintiff to fire Defend!1llt "at any time" for either good cause or "in the event that business conditions dictate the reduction of the work force by the employer." Thus, the agreen'ent also fails on its face for want of consideration and is illusory. ," B. Plaintiff's request for an equitable order awarding $10,000 in "liquidated damages" must be struck as said claim is based solely on a contractual and adequate non-statutory remedy at law, notwithstanding that Plaintiff is proceeding exclusively in 9 I . ....... --' . ...~..-;-~~. ... . .." . ... _ .' d.....-~.- .. - . - ''''.-..-r- ,~ "" . ,.' --,---~. I ' _--- . '. .' f' " " ~ equity, or alternatively, Plaintiff's claims for equitable relief must be struck as there therefore exists an adequate remedy at law. As stated, Plaintiff, in its action in equity, seeks "liquidated damages" in the amount of Ten Thousand Dollars ($10,000) based on an express clause of the agreement. See Exhibit A at 5. Thus, there surely exists an adequate remedy at law or Plaintiff's application of the "liquidated damages" clause is nothing more than a specious attempt to somehow expand this Court's equitable powers by contract. In other words, Plaintiff wrongfully and disingenuously seeks to obtain damages at law by bootstrapping and masking them into a claim purportedly for "equitable" relief. Indeed, this exact issue was pointed out, although not decided, by the Court in Worldwide Auditinq Services, Inc. v. Richter, 402 Pa. Super. Ct. 584, 587 A.2d 772 (1991) wherein the Court stated: It is well settled that, as an equitable remedy, an injunction is only available if the party seeking relief has no adequate remedy at law. The (restrictive] covenant contains a clause providing a formula for the computation of damages if (Defendant] breached, as well as a clause providing that such damages are in addition to any other remedy (Plaintiff] is entitled to, including injunctive relief. If parties specifically agree to a measure of damages in instances where exact computation of damages will be difficult, it is arguable that they have expressly provided an adequate remedy rendering injunctive relief inappropriate. Further, we note that it would be anomalous to allow private parties to expand the. application of a court's equitable powers by contract. As neither party has addressed the issue, (however], we deem it waived . . . lu. at 586 n. 1, 587 A.2d 772. Thus, plaintiff's demand for an equitable award of $10,000 concededly based solely on the contract's liquidated damages clause must either be struck or there surely exists a full, complete and adequate non-statutory remedy 10 . at law requiring that Plaintiff's requests for equitable relief be struck by this Honorable Court. Cf, Pa. R.C.P. No. 1509 ("('rlhe existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection."). In addition, Defendant also points out that a $10,000 damages provision for one year's employment in a nail salon is clearly nothing more than an in terrorem clause designed to frighten Defendant into abiding by these ridiculous restrictions and should not be upheld. c. Should plaintiff's averment that Defendant has "solicited" plaintiff's customers be either struck or be given greater specificity as said allegation is totally unsupported by any facts in support thereof and Defendant is prejudiced thereby. In paragraph 14 of plaintiff's Complaint, plaintiff avers that Defendant has "solicited" her "customers" and further seeks eguitable relief on this allegation. However, Plaintiff offers no facts in support of this statement, such as how and when such "customers" were "solicited", the. number or the identity of such "customers" or even facts indicating whether Defendant had ever even previously had contact with such "customers." Such a bald and conclusory allegation does not in any way make this statement a fact and Defendant is prejudiced thereby. In this regard, A complaint must not only give notice to the Defendant of the claim being asserted but it must summarize the facts essential to support the claim. A Plaintiff cannot escape this duty by a general averment that the facts are in the possession of the Defendant. Burnside v. Abbott Laboratories, 351 Par Super. Ct. 264, 277, 505 A.2d 973 (1985) (citations omitted). 11 . .D. Plaintiff's requcst for be struck as no legal or factual claim. an award of attorney's feos must authority cxists to support said Plaintif f seeks an order awarding attorney's fees in this matter, notwithstanding that there exists no legal or factual authority supporting such claim. It is well settled that "Plaintiff cannot recover attorney's fees from the opposing party unless a statute or an agreement between the parties provides for attorney's fees." Roycroft v. Nationwide Mutual Fire Ins., 20 D. & C. 4th 224, 232 (York 1993). Thus, the court in Roycroft struck Plaintiff's demands for attorney's fees. Id. Indeed, the court in AMP, Inc. v. McCauqhey, 38 D & C 2d l09 (Luz. 1966) considered Defendant's motion to strike Plaintiff's claim for attorney's fees where Plaintiff was seeking to enforce a restrictive invention agreement essentially like the restrictive employment agreement at issue herein. The court concluded: We will. grant Defendant's motion to strike insofar as it relates to the claim for attorney's fees set out in subparagraph (h) of the complaint. We know of no rule of law which permits the recovery of attorney's fees in the factual situation before us and Plaintiff has cited none. Id. at 116. Accordingly, Plaintiff's claim for attorney's fees clearly must be struck. lV. CONCLUSION For the foregoing reasons, Defendant's Preliminary Objections to Plaintiff's Complaint must be sustained. .Y 12 ,', ........~~., ":'-~-'11...."" .- ~ ..... ,,'~. .', j, ~ .",~:'" I ...,.~..~~-_....""~~ .'-- .. . Respectfully submitted, HEPFORD, SWA By y Andrew St tzman Attorney I.D. #72922 111 North Front street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 A'l"l'OHNEY FOR DEFENDAN'l' Dated: May 19, 1995 13 CERTIFICATE OF SERVICE I, Maureen Brann, for the firm of lIepford, Swartz & Morgan, attorneys for Defendant, hereby certify that I have this 19th day of May, 1995 served the within document, by depositing a copy of the same in the United States mail, postage prepaid, at Ilarrisburg, Pennsylvania, addressed as follows: Diane G. Radcliff, Esq. 3448 Trindlo Road Camp Hill, PA 17011 ,.Il~..A-....f\-l .tAl/VI\. Maureen Brann, Secretary for Andrew K. Stutzman .Y 14 " . .. .~.' . '.'. "f' " t" . .' ,,' ','; .' '0' WI: oo'/lI:"(l8Y C&~I,y 7HA,,"'rHi.'!.:!'c':l!'j I.,' It ,,'rRUK AND', CDftftlar: 'CO,.y",'O'~~';j1f,ti; THIl.~RlaINAL. 'ILI~ 0' '"&coRD:l~,,~~)'{~~1i D,"H- a ~cL l r . -- 1,'J,n,,' , ,.... .",..D "' '..: " \';Ir'~'~~ . '~';:'l:c:.':J!m' .v . "'~~;""~\ . '::i:; )i;, ;,!';,:;,,':;":': XJ,~~;~;{f;~~t;~f.~ , .~...'. .,...\Q................ " " , .\tJ 1.\ W OFFICE DIANE G.' RADCLIFF ,ATI'ORNEii AT LAw 5448 Trlndlo Road Camp HlII. PAJ701l .' - DIANE G. IlADCLlFF ATTORNEY.AT.J.AW SHI TRINIlI.E ROAn CAMP 1111.1.. PA 11011 SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 95-437 EQUITY TERM CIVIL ACTION EQUITY NICOLE S. PROBST, DEFENDANT PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND IN SUPPORT OF PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S PRELIMINARY OBJECTIONS /' I. FACTUAL AND PROCEDURAL HISTORY. The Plaintiff, Shelby C. Dunmire, is the owner of a nail and skin care business trading as Bloomingnails, which she operates at 4401 Carlisle Pike, Camp Hill, Pennsylvania. On March 1, 1994, the Plaintiff employed the Defendant, Nicole S. probst, in a temporary capacity as a trainee manicurist. On April 1, 1994, the Plaintiff employed the Defendant as a full time manicurist. Concurrently with that full time employment the parties entered into an employment contract which included a provisions prohibiting the Defendant from soliciting the Plaintiff's customers or engaging in competition with the Plaintiff within a twenty-five mile radius for a period of one year following termination of employment. The employment agreement also included a liquidated damages clause requiring the Defendant to pay the Plaintiff $IO,OOO.OO if ehe quit her employment without cause after having received training from the Plaintiff. 1 , ,. JA.. - A .......*_...,.........' - ~ I, .........' ~~. . P' '10"'1' ..,.A:__..,.:.....~.,;,.-:_.....~...,..~,.....;_' On November 23, 1994, the Defendant terminated her employment with the Plaintiff. Thereafter, commencing on November 30, 1994, the Defendant began competing with the Plaintiff within the restricted twenty-five mile radius. The Defendant also began soliciting the plaintiff's customers. On January 27, 1995, the Plaintiff initiated the within lawsuit against the Defendant seeking injunctive relief and monetary damages. On or about February is, 1995, the Defendant filed five preliminary objections to the Plaintiff's Complaint. On March 6, 1995, the Plaintiff filed five Preliminary Objections to the Defendant's preliminary objections. Both sets of preliminary objections have been listed for argument. Since the issues in the Plaintiff's and Defendant's preliminary objections are intertwined, both factually and legally, the Plaintiff has combined her position as to both sets of objections into a single brief. The Plaintiff is, therefore, submitting this brief in opposition to the Defendant's preliminary Obj ections and in support of the Plaintiff's preliminary Objections. DIANE C. RADCLlFt' ATTORNEY.AT.LAW sus TRINnLt ROAn CAMP IIIt.L. PA 17011 2 II. ISSUES PRESENTED. (A) CAN A DEMURRER BE SUSTAINED WHERE IT IS BASED ON CONTRACTUAL LACK OF CONSIDERATION, UNCONSCIONABILITY OR OTHER MATTERS PROPERLY RAISED AS AFFIRMATIVE DEFENSES? SUGGESTED ANSWER: NO (B) CAN A PRELIMINARY OBJECTION BE USED TO CONTEST THE JURISDICTION OF THE EQUITY SIDE OF THE COURT? SUGGESTED ANSWER: NO (C) CAN A PRELIMINARY OBJECTION BE USED TO CONTEST EVIDENTIARY MATTERS OVER WHICH THE DEFENDANT HAS AS MUCH KNOWLEDGE AS THE PLAINTIFF? SUGGESTED ANSWER: NO (D) CAN A PRELIMINARY OBJECTION BE USED TO CONTEST THE PLAINTIFF'S RIGHT TO LIQUIDATED DAMAGES? SUGGESTED ANSWER: NO (E) CAN A PRELIMINARY OBJECTION BE USED TO CONTEST THE PLAINTIFF'S RIGHT TO ATTORNEY FEES? SUGGESTED ANSWER: NO DIANE C. RADCLIFF ATTORNEY.AT.LAW !UlI TRINIlI.E ROAn CAMP 1111.1., PA 17011 3 I II. ARGUMENT. (A) A DEMURRER CANNOT BE USED TO CONTEST A CONTRACT'S LACK OF CONSIDERATION, UNCONSCIONABILITY OR OTHER MATTERS PROPERLY RAISED AS AFFIRMATIVE DEFENSES. It is well settled law that the preliminary objections available to a party are limited to those specified in Rule l028 of the Pennsylvania Rules of Civil Procedure. Matters which do not fall within the purview of that Rule are impermissible. Lehioh Vallev Transit Co. v. Yatch, 75 D & C 381 (1950). Where a party has improperly raised a preliminary objection the proper method of challenging that impropriety is by way of a preliminary objection. Farlacci v. Beaver Countv Industrial Develooment Authoritv, 510 Pa, 589, 511 A.2d 757 (1986). If sustained, then the original preliminary objection should be stricken due to its failure to conform with this rule of court. Intertwined with the right to contest the legal propriety of a preliminary objection is the right to contest the merits of a preliminary objection itself. In that contest if a preliminary objection lacks merit it likewise must be denied. Therefore, in reviewing the Defendant's first preliminary objection and each of the remaining four preliminary objections, this court must decide whether or not each objection is both permissible under Rule 1028 and meritorious. DIANE G. RADCI.IFF ATIORNf.V.AT.I.AW SU8 TRINh..r. RUAh CAMr 111I.1'1 rA 17011 4 The Defendant's first Preliminary Objection is in the nature of a demurrer. A demurrer is an assertion that the complaint does not set forth a cause of action upon which relief can be granted. Binswanaer v. Levv, 311 Pa. Super. 41, 457 A.2d 103 (1983). In order to sustain a demurrer it is essential that the pleading indicate on its face that the claim cannot be sustained. County of 'Al1eahenv v. Commonwealth, 507 Pa, 360, 490 A.2d 402 (1985); later proceeding 517 Pa, 483, 538 A.2d 873; later appeal 518 Pa. 556, 544 A.2d 1305. A demurrer should be granted only where there is no doubt or uncertainty that the Plaintiff cannot win on the merits. rg. In determining the merits of a demurrer, the objecting party admits all well pleaded facts and all inferences fairly deducible therefrom. Matters outside of the pleadings cannot be considered by the court. Linda Coal and Suoolv Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964). In paragraphs 3 and 4 of the Defendant's first Preliminary Objection the Defendant claims that the Plaintiff's Complaint should be dismissed because the contract upon which the Plaintiff's claim rests lacks consideration in that no specific wage or compensation program was set forth in that contract and because the Defendant's employment could be terminated due to good cause or change in business conditions. In raising these matters the Defendant has misinterpreted the DIANE C. RADCLIFF ATTORNEV.AT.LAW SUlI TRINnu: ROAn CAMP 1111.1.. FA. 17011 5 meaning "consideration" as it applies to restrictive covenants in employment contracts. As held in Modern Laundrv and Drv Cleanino v. Farner, 370 Pa, Super. 288, 536 A.2d 409 (1988) and Beneficial Finance Comoanv V. Becker, 422 Pa. 531, 222 A.2d 873 (1966), a restrictive covenant contained in a contract for employment is supported by valid consideration and orima facia enforceable if it is an auxiliary to the taking of employment. Therefore, it is the giving and taking of employment that constitutes the consideration for the restrictive covenant, and not toe amount of wages paid or the duration of that employment. Since the complaint on its face clearly alleges the giving of employment a demurrer based on a lack of consideration cannot be sustained. Furthermore, this portion of the demurrer must be stricken because it is an impermissible demurrer under Rule 1028. Under that Rule a demurrer may not be used to attack the want or failure of consideration not apparent on the face of the complaint. Intearated Financial . svstems Ltd. V. Grissinoer, 96 Dauphin Co. Rep. 245 (1974). Thus, since consideration appears on the face of the complaint from the giving of employment and in the payment of wages (paragraph 6 of Plaintiff's Complaint) and since mutuality of rights as to termination also appear in this pleading (Exhibit ""A" page 2 subparagraph c) there is no lack of consideration apparent on the face of the pleading and the demurrer is, therefore, DIANE G. RADCLIFF ATIORNEY.AT.LAW SHe TRINtJU: RoAn CA~tll 11I1.1., IIA 17011 6 impermissible under Rule 1028 and must be denied. In paragraphs 5 and 6 of the Defendant's first preliminary Objection the Defendant has claimed that the Complaint should be dismissed because the geographic scope of the underlying restrictive covenant (twenty-five miles) is clearly unreasonable and unconscionable. This again is an impermissible use of a demurrer. The determination of whether or not the geographic scope of a restrictive covenant is unreasonable or unconscionable can only be made after reviewing all of the facts in a case. To determine reasonableness as to scope the court must look at the area in which the Plaintiff operates her business to see if the geographic scope of the restriction is reasonably necessary for her protection. Jacobson & Companv v. International Environmental Corp., 427 Pa. 439, 235 A.2d 612 (1967). Even if the geographic territory is overly broad, the court is empowered to limit its effectiveness to that which is necessary to protect the employer. Bark-Lee Mobile Frame Co. v. Hoot, 416 Pa, 222, 206 A.2d 59 (1965); Sidco Paper Company v. Aaron, 465 Pa, 586, 351 A.2d 250 (l976). Therefore, a determination as to reasonableness cannot be made at this time by way of preliminary injunction, but rather must wait until the facts of this case are further developed at trial. This would include, but not be limited to, a determination of the area in which the Plaintiff draws her customers and, DIANE G. RADCLIFF ATTORNEY.AT.LAW SHa TRINllI.E ROAn c.Ulrllll.l..rA 17011 7 therefore, the area in which she requires protection from competition. Thus since the Defendant's first Preliminary Objection goes to the merits of the case which can only be determined by further development of the facts, it is outside of the scope of permissible objections and must be raised in some other manner. Dirienzo v. Verna, 13 80m. Leg. J. 283 (1947); McHale v. Antonio, 71 Luz. Leg. Reg. Rep. 54 (198l). Furthermore, the Defendant's demurrer is contrary to the facts admitted by the demurrer in the Complaint. In paragraph 3 of the Complaint the Plaintiff alleges she operates within the Camp Hill, Mechanicsburg and surrounding areas. In paragraph 13 she alleges that the Defendant is wrongfully competing with her in Mechanicsburg, Pennsylvania. Thus, since the court is empowered to limit the effective geographic scope of a restrictive covenant to that which is necessary to protect the Plaintiff's business interest, it is clear that the Complaint sets forth a good cause of action as the Defendant is admittedly competing within the very area where the Plaintiff is doing business and, therefore, at the very least the Plaintiff has alleged a protectable interest in that area. Moreover, this portion of the Defendant's demurrer is impermissible under Rule 1028 being outside of the scope of that rule. A demurrer may not be utilized to contest the unreasonableness or unconscionability of a contract. DIANE G. RADCLIff ATTORNEY.AT.LAW SHS TRINIJI.F. ROAU CAMP 1111.1.. P^ 11011 8 Fredericks v. Hamm, 45 D & C 2d 687 (1968). A claim as to unreasonableness and unconscionability as set forth in these two paragraphs clearly is not allowed to be raised as a demurrer. DIANE G. RADCLIFF ATIORNEV.AT.!.AW Jua TRINnl.t ROAII CAMr 111\.1,. PA nOli In paragraph 7 of the Defendant's first Preliminary Objection, the Defendant has demurred to the Plaintiff's Complaint on the basis of excessive restraint ,of trade. In her brief the Defendant has argued that the agreement is an unconscionable restraint of trade because it would preclude the Defendant from working as even a mere nail technician when she was employed by the Plaintiff as a manicurist. A reasonable interpretation of and the inferences from the use of these terms indicate that these two positions, nail technician and manicurist, are basically interchangeable. To argue to the court that they are somehow different is incredulous. Furthermore, since there is doubt as to whether or not these two positions are similar or dissimilar, this court cannot say with certainty that the Plaintiff cannot establish her need for protection. Since all doubts must be resolved in favor of the Plaintiff, this court is not in a position to grant the Defendant's demurrer. Additionally, it cannot be said by reading the Complaint that on its face it clearly indicates any restraint of trade exists or that the Defendant is precluded from other unrelated employment or precluded from this type of employment outside 9 of the twenty-five mile radius, an obviously commutable distance. Since the Complaint does not show on its face that the claim is devoid of any merit and it cannot be said with certainty that recovery cannot be granted, the demurrer is not to be sustained. Commonwealth Department of Environment Resources v. peoos Run Coal Company, 55 Cmwlth. 312, 423 A.2d 765 (1980). Lastly on this issue the Defendant has argued that since the agreement does not specifically call for reformation as to capacity of employment that the Complaint must be dismissed in its entirety. In this position the Defendant is incorrect. While it is true that the agreement precludes all employment in the nail care business and the Plaintiff has sought such prohibition, that is not to say that the court is not entitled to reform the contract as to the Defendant's working capacity in a nail care business to an extent necessary for the Plaintiff's business interests. On the contrary the law clearly provides that the court is empowered to restrict the effectiveness of restrictive covenants as to capacity regardless of the terms of any agreement. For example, in Air Products and Chemicals. Inc. v. Johnson, 442 A.2d 1114 (1982), the former employer sought an injunction prohibiting his former employee from working for his competitor because of hiB knowledge and potential use of the former employer's trade secrets. The court, while refusing to grant the employer'B DIANE G. IlADCLlFF ATTORNEY.AT.LAW 10 SHII TRtNOt.F. ROAn CA~IP 1111.1.. rA 17011 requested to terminate that new employment, nonetheless entered an injunction prohibiting the former employee from doing any work for that new employer which would require him, consciously or unconsciously, from utilizing those trade secrets. It is, therefore, clear that enforcement as to capacity is not an all or nothing proposition and that the court is free to reform the capacity portion of the agreement as the equities of the case may dictate the same as it can reform or limit it as to geography and duration. In paragraphs 8 and 9 of Defendant's first Preliminary Objection, the Defendant has claimed the Complaint should be dismissed as the Plaintiff has no legitimate business interest protectable by the court. As held in sidco Paper Companv v. Aaron, 465 Pa, 586, 351 A.2d 250 (1976), an employer has a right to protection of customer good will which often is acquired through the efforts of the business's employees. That clientele is an asset of the business which is a protectable property right. To protect that right when an employee leaves a business, that employee can be prohibited from diverting those customers. See also John C. Brvant Co. v. Slina Testina, 369 A.2d 1164 (pa. 1977); Jacobson & Companv. Inc. V. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967). Under the holdings of these cases it is clear that a business may well have a protectable interest in its customer relations and in preventing a disturbance of DIANE G. RADCLIFF AnORNEY.AT.I.AW SH8 TRINhl.r. ROAn CA~lf 1IIL1.. fA 17011 11 those relations. Therefore, whether or not the Plaintiff has a protectable business interest in her clientele, which as alleged in the complaint the Defendant is now soliciting, is a matter to be determined by a trial on the merits and is properly raised as an affirmative defense and not as a preliminary objection. In the law governing enforceability of restrictive covenants' associated with employment contracts it is clear that those covenants are prima facia enforceable as long as they are supported by consideration (the taking of or change in employment) and are reasonably limited as to time and geographic area (subject to the ability of the court to limit capacity, time and geography) and are necessary so as to protect the interest of the employment. Piercino Paooda. Inc. v. Hoffner, 465 Pa, 500, 351 A.2d 207 (1976). In essence, all of the various sub-parts of the Defendant's first preliminary Objection raise matters dealing with the merits of the case and should properly be dealt with as an affirmative defense and not as a preliminary objection. To be legally sufficient the Plaintiff need only allege the taking of employment, the entry into a contract with Q restrictive covenant concurrently with that employment, the termination of employment and the violation of the restrictive covenant. All other issues such as have been raised by the Defendant go not to whether or not the Plaintiff has stated a good cause of action, but rather to DIANE G. RADCLIFF ATIORNtY.AT-LAW SHI TRINnU. ROAU C.UII' 1111.1.. I'A 171)11 12 whether the court should enforce this agreement or to what extent enforcement should be ordered on the based on the circumstances as may be developed at the trial of this case. As such the Defendant's first Preliminary Objection is premature and impermissible. The Plaintiff submits, therefore, that this demurrer should be dismissed. (B) A DEMURRER MAY NOT BE USED TO CONTEST JURISDICTION OF THE EQUITY SIDE OF THE COURT. In the Defendant's second Preliminary Objection the Defendant claims that since the Plaintiff's claim is based on a contract, the Plaintiff has an adequate remedy at law thereby precluding an action in equity. unfounded. This claim is In the first place a demurrer may not be utilized to challenge the jurisdiction of the equity side of the court. March v. Banus, 8 Chest. Co. L.R. 235 (1958). Since a claim that the Plaintiff has an adequate remedy at law is a contest as to equity's jurisdiction it is impermissible under Rule 1028 and must be stricken. Furthermore, the fact that a cause of action is based on a contract does not preclude equitable enforcement. On the contrary in cases involving restrictive covenants in employment agreements injunctive relief is permissible to prevent unbridled competition since the measure of damages in DIANE C. RADCLIFF ATIORNEY.AT.LAW SU8 TRINIlI.r. ROAII CAMP 1111.1., PA 11011 13 such cases is often incapable of determination. Furthermore, the cases of this nature also permit employers to obtain not only injunctive relief but also damages as well. Jacobson & Comoanv. Inc. v. International Environmental Coro., 427 Pa. 439, 235 A.2d 612 (1967); Fidelitv Fund v. Disanto, 500 A.2d 431 (Pa.Super 1985). Therefore, since tho law is clear that equity does have jurisdiction to both enforce agreements and award damages, the Defendant's second preliminary Objection must be denied. (C) A DEMURRER OR A MOTION FOR A MORE SPECIFIC PLEADING CANNOT BE USED TO CONTEST OR SEEK ELABORATION ON MATTERS OVER WHICH THE DEFENDANT HAS AS MUCH KNOWLEDGE AS THE PLAINTIFF. In the Defendant's third Preliminary Objection the Defendant has claimed that the Complaint is insufficient because the Plaintiff has failed to allege the number and identity of the Plaintiff's customers solicited by the Defendant or when and how that solicitation occurred. A preliminary objection to a complaint will be denied where the complaint provides the Defendant with enough facts to frame a proper answer and prepare a defense. Commonwealth ex reI Milk Marketinq Board v. Sunnvbrook Dairies. Inc., 29 Cmwlth. ct. 210, 370 A.2d 765 (1977). Moreover, such an objection should be denied where the objecting party may be presumed to have as much knowledge of the information sought DIANE G. RADCLIFF ATTORNEy..\T.LAW SUI TRINm.E ROAn CA~IP 1111.1., rA 17011 14 as does the pleader. Porta v. American Bank and Trust Company, 48 D & C 2d 523 (1970); Bio Bovs Auto Parts Co v. Bon Ton Store, 15 D & C 551 (1958); International Union U.B.. F.e.. S.D. & D.W. v. Watkins, 417 Pa, 120, 207 A.2d 776 (1965) . Thus, since in this case the Defendant would have as much if not more knowledge of the customers solicited by the Defendant, the Defendant cannot be heard to object as to any lack of specificity on this matter in the Complaint. The Defendant's third Preliminary Objection should, therefore, be denied. (D) A PRELIMINARY OBJECTION CANNOT BE USED TO CONTEST THE PLAINTIFF'S RIGHT TO LIQUIDATED DAMAGES. In the Defendant's fourth Preliminary Objection the Defendant has sought to strike the Plaintiff's claim for liquidated damages asserting this claim is a penalty and is unconscionable. This claim is, therefore, in the form of a motion to strike instead of a demurrer since it seeks to DIANE G. RADCLIFf ATTORNEY.AT.LAW SHI TRINUI.f. ROAn C"~II' 1111.1.. rA 17011 strike only part of a pleading rather than testing the legal sufficiency of a pleading as a whole. A motion to strike is generally applicable to errors as to form and the failure to follow procedural rules such as the failure to endorse a pleading properly, the failure to state facts succinctly or the failure to timely file a pleading. 15 Such a motion may not be utilized to attack the propriety of the request for relief or the measure of damages. Sidelina Hill Christian Cemeterv Assoc. v. McFarland, 9 Adams L.J. 186 (1968); Porter v. Drexel Motors. Inc., 55 Del. Co. Rep. 191 (l9 67). Nor may it be used to attack the relief sought by the plaintiff on the basis that it is improper. Societv Hill Towers Tenants Assoc. v. Societv Hill Development. Inc., 75 D & C 2s 101 (1976). [See also the following cases pertaining to the impermissibility of utilizing a demurrer to contest the theory or measure of damages: Klemow v. Time. Inc. 466 Pa, 189, 352 A.2d 12 (1976) cert. den. 429 U.S. 828, 50 L. Ed. 2d. 91, 97 S. ct. 86; Hudock V. Doneaal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970). An objection to the theory or measure of damages cannot be raised by way of preliminary objections. Rather such an issue must be raised as an affirmative defense in the responsive pleading, and therefore determined in later proceedings in the case Societv Hill Towers Tenants Assoc. V. Societv Hill Development. Inc., Supra. Thus since the Defendant's fourth Preliminary Objection contests the right to damages it is an impermissible objection under Rule 1028 and must be denied. (See also the argument in Section B as to the right to damages.) DIANE G. RADCLIff ATTORNEY.AT.LAW JHI TRINnu: ROAn CAMP 11I1.1" PA nOli 16 (E) A PRELIMINARY OBJECTION MAY NOT BE UTILIZED TO CONTEST THE RIGHT TO ATTORNEY'S FEES. The Defendant's fifth preliminary Objection seeks to strike from the Plaintiff's request for relief the Plaintiff's claim for attorney fees. This objection is seeking the contest the Plaintiff's theory or measure of damages. As in the preceding section, the arguments for which are incorporated by reference, this is an impermissible preliminary objection and must be denied. IV. CONCLUSION. Since the Defendant's five Preliminary Objections all lack merit and raise matters outside of the scope of Rule 1028, those objections must be denied by this court. DIANE G. RADCLIFF ATTORNEY.AT.LAW SHIITRINm.f. ROAIJ CAMP IIIt.1.. PA 17011 17 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil Procedure, by depositing a copy of the same in the United States Mail, Shiremanstown, Pennsylvania, with first-class postage, prepaid, as follows: ANDREW K. STUTZMAN, ESQUIRE HEPFORD, SWARTZ & MORGAN P.O. BOX 889 HARRISBURG, PA 17108-0889 "'; Dated: ' rLC' J G \ DCLIFF, ESQUIRE TrJ.n "e Road Hill, PA l7011 -0100 32112 DIANE C. RADCLIFF ATIORNEY.AT.LAW SUI TRIND1.E ROAU CAMP 1111.1.. PA 11011 SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS, PLAINTIFF V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NICOLE S. PROBST, DEFENDANT 95-0437 EQUITY TERM BEFORE HOFFER. J. AND BAYLEY. J. ORDER OF COURT AND NOW, this ~'- day of June, 1995, the preliminary objections of defendant to plaintiffs complaint, ARE DISMISSED. t\fu:lI~ Edgar B. Bayley, J. I Diane G. Radcliff, Esquire For Plaintiff C....t:W ""' ()W'~<_.Q, ,l ~ 19 (ti s-. II ..! f . Andrew K. Stutzman, Esquire For Defendant :saa JUN 9 II 37 AH 195 tiLeD OffiCE Of THI :"', rHOllrTl.f." CUf.\~["L~~ll C01hTY I'UIIi;'H'.,\'iI!. AUG 10 19nt:; -bY' SHELBY C. DUNMIRE t/d/b/a BLOOMINGNAILS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA v. NO. 95-437 EQUllY TERM CIVIL ACTION EQUllY NICOLE S. PROBST, DEFENDANT ORDER OF COURT AND NOW, !hI. --/.l'.. d., of ~5' In 'o",'d.ration of tho attached Settlement Stipulation of the parties, IT IS HEREBY ORDERED AND DECREED as follows: 1. For a period of one year following two weeks from the date of the attached Settlement Stipulation dated July 21, 1995, the Defendant, Nicole S. Probst, shall be enjoined and prohibited from being employed as a nail technician, manicurist, or other similar type capacity providing nail services or retail sales of nail care products within a radius of ten miles of the Plaintiff's place of business located at 4401 Carlisle Pike, Mechanlcsburg, Pennsylvania. 2. For a period of one year following two weeks from the date of the attached Settlement Stipulation dated July 21, 1995, the Defendant, Nicole S. Probst, shall not knowingly cail or solicit, directly or Indirectly, any business customers of the Plaintiff nor participate or assist In the diversion of said customers away from the Plaintiff to any other person or business. .' 3. There shall be no damages, liquidated or otherwise, or other relief awarded or granted to the Plaintiff as the result of the Defendant's prior alleged violations of the parties' Employment Agreement. Each party shall bear their respective attorney fees and costs Incurred as the result of this litigation. The foregoing notwithstanding, the Defendant, Nicole S. Probst, may be held liable for damages Incurred by Plaintiff resulting from Defendant's failure hereafter to comply with the terms of the attached Settlement Stipulation, and such other relief as may be equitable under the circumstances. / / BY THE COURT! .' / / , ," " Distributed to: Diane G. Radcliff, Esquire for Plaintiff . (W'-'~ '() (1IIq,s-: .....~ ....&f. Andrew K. Stutzman, Esquire for Defendant 2 '. I I U"'> en ,'- :1"= ,_.- r- tf' N = " "-' -~~ , IN 'l'HE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHELBY C. DUNMIRE tIbIa B~OOMINGNAIL'S No. 95-437 EQUITY TERM Plaintif f Defendant : I I : : : : CIVIL ACTION - EQUITY v. NICOLE PROBST SETTLEMENT STIPULATION AND NOW, this gt:! day of July, 1995, come the parties, together with their respective legal counsel, and stipulate and agree as follows: 1. For a period of one year following two weeks from the date of this Stipulation, the Defendant, Nicole S. Probst, shall be enjoined and prohibited from being employed as a nail technician, manicurist, or other similar type capacity providing nail services or retail sales of nail care products within a radius of ten miles of the Plaintiff's place of business located at 4401 Carlisle Pike, Mechanicsburg, Pennsylvania. 2. For a period of one year following two weeks from the date of this Stipulatio~ the Defendant, Nicole S. Probst, shall not knowingly call or solicit, directly or indirectly, any business customers of the Plaintiff nor participate or assist in the diversion of said customers away from the Plaintiff to any other person or business. 3. There shall be no damages, liquidated or otherwise, or other relief awarded or granted to the Plaintiff, as the result of . I . the Defendant's prior alleged violations of the parties' Employment Agreement. Each party shall bear their respective attorney fees and costs incurred as the result of this litigation. 'l'he foregoing notwithstanding, the Defendant, Nicole S. Probst, may be held liable for damages incurred by Plaintiff resulting from Defendant's failure hereafter to comply with the terms of this Stipulated Agreement, and such other relief as may be equitable under the circumstances. 4. The parties acknowledge and agree that this Stipulated Agreement is intended to fully and completely settle the issues and claims arising in the within action. The parties, therefore, authorize the Court to enter an order incorporating the terms of this stipulation as a final Order of Court. , IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties her.~to have executed this Stipulated Agreement the day and year first 3bove written. WITNESS: ~ e1.y t/d/b/a B i Ift,"- -1 tit/if Nicole S. Pro st Andrew K. Stutzma for Defendant 2