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HomeMy WebLinkAbout95-02882 , C) ~ ~ i , -ti / (' , ! ~ " ,..~ J j: '" -t -J -t \.j 1t u \,) -:::r .r) en U 0- LD () .j l'J' = In ., ~ ...- '..J (<;I - m ~ ") ('6 I n ,4 .q:x tJ 11 c .J '-f,. ..J -- U '. . . "t-.O."I."...,I.....,.... ~:"..;~, f',' l_~ ",r'l".IJ' '" ~~118 ;o(~~~ oIlia:-lR m~i!EE ~o(a~ .. 4. On June 6, 1994, Plaintiff and Defendant Hammaker executed a written employment agreement (hereinafter "Employment Agreement") by which Plaintiff agreed to employ Defendant Hammaker as an employment representative in consideration of Plaintiff paying Defendant Hammaker $360.00 per week. A copy of the Employment Agreement is attached hereto as "Exhibit A." 5. At all times relevant and material to Plaintiff's cause of action, Defendant Capital Area is a temporary help business, and is a direct competitor of Plaintiff. 6. At all times relevant and material to Plaintiff's cause of action, Defendant Hammaker has been engaged in performing services as an employment representative. 7. Defendant Hammaker has the reputation of possessing certain skills in the rendering of such services. 8. By paragraph seven (7) of the Employment Agreement, Defendant Hammaker agreed that during the twelve (12) month period immediately following her termination of employment with Plaintiff, she would not, in any area within fifty (50) miles of any of Plaintiff's businesses, engage, either directly or indirectly, in competition with the business activity carried on by Plaintiff. 9. Defendant Hammaker terminated her employment with Plaintiff on March 31, 1995. 10. In April, 1995, the exact date of which is unknown, Defendant Hammaker obtained employment as an employment -2- representative with Defendant Capital Area, a business located within fifty (50) miles of Plaintiff's business and in competition with Plaintiff. 11. Upon information and belief, Defendant Hammaker has, since the date of her employment with Defendant Capital Area, engaged in the temporary help business in competition with Plaintiff and has or will solicit, divert or take away persons and companies who are potential applicants and clients of Plaintiff. 12. 'fhe aforementioned actions of Defendant Hammaker constitute breaches of the Employment Agreement. WHBRBFORB, Plaintiff, Keystone Personnel & Keystone Temporary Services, Inc., respectfully requests this Honorable Court to: (a) permanently enjoin Defendant, Lori J. Hammaker, from soliciting business from or rendering services to any person or entity which violates the terms of the Employment Agreement for a period of twelve (12) months from the date of the termination of Defendant Hammaker's employment with Plaintiff; (b) permanently enjoin Defendant, Capital Area Temporary services, Inc., from soliciting, obtaining or using the services of Defendant Hammaker for a period of twelve (12) months from the date of the termination of Defendant Hammaker's employment with Plaintiff; -3- Exhibit A '.' EHl'J.OYHElll' AGRlmHEllT 2. HOllR:!.. EmplC)'ee shall he re'l"ired to ,wrk on 0 five day cslendor week between the hOllrs o( r.'p{J-:;-:'OO "a"turn Standnrd Time thrbugh Eastern Standnrd Time ot 0 localion tll be selected by Employer. 3 . 1'1 J.llli...Jlt~PIUJ5 AIIIJ PA TA . It Ie lII111~1-6lood nnd at~rued l\ert!t.u tl1nt tIle tlnnles, addresses, HIes, Job orders, (orms, reu'ld" ond other "alient business data of the npplicants ond client cempanies of Emplo)'er (onstitute a valuable asset of Emplo)'er and .re trode secrets of the Emplo)'t!\'. In the event that Emplo)'ee's employment relntionohip ,.-lth Emplo)'H "hall be terminated, Io'hether voluntarily or involuntarily. Emplo)'ee agrees that he or she will Ileop confidential cuch information; that he er she will not .ttempt to benefit personally in any way (rom the disclosure o( nn)' sllch information relnting to said cI ients; that he or Gha will not sell, give or disclose Bny [;ut:h nnmes, Addresses or other salient busines8 d.ta of Employer'r. clients to nny competitllr of Employer nnd, that he or she will not mol<e eny efforl, directly or indirectly, on his or her own beholf or on the behelf of any olher penon or b".iness entity to encollrege any of said clients of Employer to wJthhold theh p31ronage from Employer. It is further understood that no file.. reconls, oc l'I.ht!r sallent business data of Employer shell be removed from thB ofHre. \If Emplo)'er ,dthout the e'pre.. prior consent of Emp] ")'Ot' , I,. 'I'1lAIlllll~, Empl'J)'H l:linll be ''''ponsilile for providing t.raining et He 0\-11\ expense to the benefit {\[ Ell\pll')'l:r in onler lhnt he or the moy improvo his or her skills os I1n F.mployment H..pr..r.untutJv,' , The IImuuot of. said training, the localhlIl ot snit,! Ilnining nnd th~ l'xl ('nl t1(" tdlCh lruining til1311 be at the dis"r"I ion of Emplo)'"," , 5, !,!!!:;JLlTl/'li, Emp1,,)'r', "lwl1 I." '''I'I",,,~jbJ,, ro, providi"llull IncJJjlies necessary for the tIel fOllllfll1lP of dllt if'S nil nn Empluyment Hepll'flentnt ivo. 6. !'IiOMTl9l!. ElIlploY'H ",," rmployo" e'~"owledge Ihat Ihe Illst ninety (90) tle)'9 of the EmpJo)'lnunt '''',1'''.'11''11' shall (Oll.tltule what ia hnown as 8 "probntionnry podod", At tho cllndu,;ion o( ~ald probat.ionary period, Employer shnll have the right to retain 0'- dischnrge Emplo)'ou Idth or without cnuse. Emplo)'er furthe,- nr.Srve6 the right to t.erminate any time then,after nn employee not (ully complying with his or her job dl'r.cription and duties as directed, or nny roasons listed undor pUlugrnph "leven (11), T!!rmlnntion, 7. HE5THIC'nVIi COVlillhtlT. F.JI1plll)'ee lloen herl1hy t':qll'eflfdy covcnnnt I pl"om1r;0 Bnd ogree that du,-inl! t.he lHm o( Ids or IIf'r I'rnl'lc)'mcnt nnd (or a poriod uf one (1) yenr fol1U\voing the t.erminatiun of hir. or llt'r QmploYlllent, fur any rOOfion whatsoever, he ur she shnll not, either nr. prinelpsl or 00 behalf of, 0,' in conjooction "ith, any uther person, firm, pnrtnenhip. compnny or corporntion, either as agent, employee, pnrtner, o((il'l'r, .Ilr!!ct.or, "ollGnl tant or nny other cap"c1ty, directly or Jndirectly, "ithin n rnrll1l6 of fifty (50) miles from Emplo)'er's principal office do nny of the following: A, Emplo)'ee shnll not engnge in the employment agency or temporary help busioess in cempetition with En~lo)'er. D, Emplo)'ee ngre"s that he or r.he shall not solicit or contnct nny of ElIIplu)'Cl"'s cIiBnts "ith whom he or she dealt doring the employment relationship, C, Iirnplo)'oo agr"e" t.hat he or "he shall not solicit, divert or take ""ny pIltontinl applicnnts Dr client cDmpanies Df Ernplo)'er ,dlhin snid fifty (50) mile radiu" Df Emplo)'e,"r. prlndpal D((ice fur the period Df Dne (1) )'ear from the tecmlnation of his Dr her employment relationship, o. COHPElISA'nO!!. Ernpln)'er ngn~l'R to C('lopC'llflnte Emplo)'ec for t.he perforInonce of F.mpluYlllent ReproculltolJve in th,' fulll1\lillg "'''n:It'r, the Emplo)'oe Ghall earn3G.{).oo per "'Bek, plus ponuD if 'lllalifi"" , 9. DEUEI'I1'S. Emplo)'er our""s to ITD'Iide salarior! Emplo)'ee the f011D"lng fringe benefitsl A, Vat:nUon ia arrlll11111nted nt a rate of 03% per mDnth or 5 da}'a Cur e\'ery 6 mDnths, After 5 years, 3 weeks vacntion is esrncu at a rote Df 1.25% per month, This is cnlrlllotud frnm )'our anniversary dnte to YDur anniversary doto, Vnrntinn limn. cnn nut be carried Dver from year to yr'ar, It I11IJr.t be or.ed hy your nnniversary date IMl'LO"yHElrr AGHEElmN1' n. Employell "hall hll '''ltitled 10 the followlnll holiday.' Chrlstmns, I-lem"rlnl !Joy, Fourth of Joly, Labor Day, Thanllsllivinll nnd New Yllnr's !Jay. , C, l'aid del, len\-ll is nVllilnb1c onl)' for full-time, salnded employees and .hnll be determined nt the discretion of Employer , 0, Dinner costs for nttendinll various busiuess meetings when relsted to the industry to be pllid by Employer unless otherwise stilted in advance, Seminar costs to be handled in the 60me manner. convention costs will be on a contest or bon\\s husil:i. 10. COIl'l'HOL. Employer shall reserve tho right to direct and control the assignment of applicants/temporary employees and client companies to Employee and Employee agrees t.o Accept the responsibility assigned to him by Employer. 11. ~'E1lHINATlON. Employee may volunt.nrily terminate t.he employment relationship provided he or she notify Employer t.\.IO (2) \leolts in advance as t.o the date of his or her termination. A. Employer may t.enll!lInt.e the employment. relationship for tIle fullowina rcasonOI 1. Violar ion of the code of ethics est.ablished by the National A,"nciat.icn of Personnel Consultants or National As"oelation of Temporary Services, 2, Violatllm of I ho liccnsinlllaws of t.he Conunonwealth of Pennsylvania end/or foderal regulations governing elnI)loym~nl ngcl1cies or tem!lOrary help services. ], Any continued course of conduct which is dlltrlmentaJ to Ihe Employer \.Ildch aftor notice by Employer t.o Employee in continlled by Employee, This conduct ran Inc]ude. but Is not limited to, intoxic3tion nn the job, abusive language, inunoral comluct I tardin(~6S find un{'xcused Ausences, refu~81 to follow Empl oYf'r I'"] leies or instructions in the performanre of his llr her duties. 4. Any t I iii" dllril1ll the probationary period without CBlItiO. EMPLOYMENT AGREEMENT 12. ~. This Agreement shall Pennsylvania and shall be be governed construed in by the laws of the accordsnce therewith, Commonwealth of IN WITNESS "~EREOF, the parties hereto have executed this agreement the day and year first above written. KEYSTONE PERSONNEL AND KEYSTONE TEMPORARY SERVICES BY, Sherry L. President EMPLOYMENT REPRESENTATIVE BY, (.M,t~ 12 dJw.mt.aJ~A.) S gnat e of Employee WITNESS, r:~, ~ ' Ie C."J V 'v; .-~ -.. , KEYSTONB PERSONNEL , KEYSTONE TEMPORARY SERVICES, INC., IN THB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA plaintiff v. NO. (i I). .) <: j <'J ) IN EQUITY LORI J. HAMMAKER and CAPITAL AREA TEMPORARY SERVICES, INC., Defendants ORDER SETTING HEARING DATB AND NOW, this day of 1995, a hearing on Plaintiff's Motion for Preliminary Injunction will be held on , 1995, at _,m., in Court Room No. , cumberland county Courthouse. BY THE COURT: ! - I' . \ /' , ,( I (j) \~ \ ( " ) , \ ) -), , J " . ( \ \ I ( I "-. I , ',\ ! : l' \ \. ) I, \ I \ ! Defendants I IN THE COURT OF COMMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I I I I I I I I I NO. ,. ) ) , .,' ) . , , , .i'" KEYSTONE PERSONNEL , KEYSTONE TEMPORARY SERVICES, INC., plaintiff v. LORI J. IlAMMAKER and CAPITAL AREA TEMPORARY SERVICES, INC., IN EQUITY ORDER AND NOW, this day of , 1995, after a hearing on Plaintiff I s Motion for Preliminary Injunction, said Motion is hereby GRANTED. BY THE COURT: J. ,r KEYSTONB PERSONNBL , KEYSTONB TEMPORARY SERVICBS, INC., Plaintiff I IN TUB COURT or COMMON PLBAS I CUMBERLAND COUNTY, PENNSYLVANIA I I I : NO.' h.:)~,'.'>'.) : : : v. LORI J. HAMHAKER and CAPITAL AREA TEMPORARY SERVICES, INC., . . Defendants : MOTION FOR PRELIMINARY INJUNCTION c 1. This Motion is submitted pursuant to Pa. R.C.P. 1531. 2. Concurrent with the filing of this Motion, Plaintiff has filed a Complaint seeking to permanently enjoin Defendant, Lori J. Hammaker (hereinafter "Hammaker") from violating the terms of an employment agreement. 3. In support of this Motion, Plaintiff relies upon, and incorporates herein by reference, the verified Complaint and exhibits thereto, a copy of which is attached hereto as "Exhibit A." 4. The breaches of Defendant Hammaker of the employment agreement have and will continue to cause immediate and irreparable harm to the Plaintiff unless a preliminary injunction is granted. 5. Plaintiff has no adequate remedy at law. WHEREFORE, the Plaintiff requests this Honorable Court to: (a) preliminarily enjoin Defendant, Lori J. Hammaker, from violating the terms of the employment agreement I REAGER & ADLER. PC A1l0~NIYS AND (OllNSIIOIIS Al lAW .nIl M...UHdl \Iffl" ( A.\\1'1I111. 1'1 NN\H \'AI'",' I ~1I11'''hH 11 ;".;"111-118 I 11111 \~ 717 llU-llhh 1If101l0Rt ^AI!LIR" IlA\'1Il II'. RI At,1 R (!LURA A III NIION lIH1M!\S 0. WilliAMS S(JSAN II I ONIAtH NIPl'r lO' August 25, 1995 r.o. IIOk 197 ftARRIShURr.. ,." 11108.019,. MONIC A IllIH( It! N (('.:.11,\\\1\1.1111 OAI..o .ullllillt'd lull< 11.11 Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Rei Keystone Personnel , Xeystone Temporary Services, Inc. v. Lori J. Hammaker, at al. No. 95-2882 \ Cumberland county Dear Judge Oler: Enclosed please find a Memorandum of Law in support of plaintiff's motion for an injunction. A hearing on this matter is scheduled to begin on Monday, August 28, 1995, at 9:00 a.m. Thank you. TAA/kde Enclosure pc: Sandra A. Girifalco, Esquire (w/enc.) ,-. , 'j' t << l'Ililll'd .i'l .1 ( I~ II 111,11 ~Ill'll(lllq h~' Ihl' N,llifllldIUn,lId III 111.11 ^tl~1ll ,II t. ^ I'l'llm~'f\olJlitl \UpII'flll' (owl Ac (IPdlh'IJ AI(I'IH Y .--.-.- -.--- '..'-.----- ------. ~ ~ ~ ~ ~. ~ ii Iil 0( ... ~ I::~g .itl:,... ~g~g~ ~o(a~ Plaintiff I IN THB COURT OF COKMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I I I NO. 95-2882 EQUITY TERM I I I I I I KEYSTONB PERSONNEL , KEYSTONB TEMPORARY SERVICES, INC., v. LORI J. HAMMAKER and CAPITAL AREA TEMPORARY SERVICES, INC., Defendants MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR PERMANENT INJUNCTION I. STATEMENT OF THE FACTS The following facts are not in dispute. On June 6, 1994, Defendant Lori J. lIammaker came to work for Plaintiff as an employment representative. As a condition of her employment, she signed an employment agreement (hereinafter "the Agrpp.ment"). Paragraph 7 of the Agreement states: BESTRICTIVE COVENANT. 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 following the termination of his or her employment, for any reason whatsoever, he or she shall not, either as principal or on behalf of, or in conjunction with, any other person, firm, partnership, company or corporation, either as agent, employee, partner, officer, director, consultant or any other capacity, directly or indirectly, within a radius of fifty (50) miles from Employer's principal office do any of the following: A. Employee shall not engage in the employment agency or temporary help business in competition with Employer. B. Employee agrees that he or she shall not solicit or contact any of Employer's clients with whom he or she dealt with during the employment relationship. C. Employee agrees that he or she shall not solicit, divert or take away potential applicants or cl ient companies of Employer within said fifty (50) mile radius of Employer's principal office for the period of one (1) year from the termination of his or her employment relationship. Prior to her employment by Keystone, Hammaker had never worked as an employment representative and had never worked for an employment agency in any capacity whatsoever. Her prev ious employment was varied. It included working (a) for trucking companies as an administrative assistant or a billing clerk; (b) as a secretary; and (c) as a customer service representative for the General Electric Co. Hammaker has computer and secretarial skills, and has taken accounting courses at Harrisburg Area Community College. Hammaker was hired by Keystone to work out of its Harrisburg and Lemoyne offices. She had access to the following confidential information of Keystone. (a) the employment and payroll histories for all of Keystone's job applicants; (b) Keystone's client lists, including contact names; -2- (c) Keystone's rate sheets and fee schedules for permanent placements; and (d) Keystone's confidential sales strategies and client bill ing rates. On March 31, 1995, Hammaker terminated her employment with Plaintiff. In her termination letter, she stated that she was ending her employment with Keystone so that she could "stay home with [her] children." On May 1, 1995, Hammaker went to work for Defendant Capital Area Temporary Services. Capital Area is a temporary help business and is a competitor of Plaintiff. Hammaker is employed by Capital Area as an employment representative, the same position she had when she worked for Plaintiff. As an employment representative, Hammaker seeks out potential job applicants in direct competition with Keystone. As recently as August 15, 1995, Hammaker participated in a job fair in which Keystone was also participating. At that fair, companies that are long-time clients of Keystone were also participants. Hammaker's exhibit booth on behalf of Capital Area Temporary Services was set up not more than fifty (50') feet from Keystone IS. On May 26, 1995, a Complaint and Motion for Preliminary Injunction was filed by Plaintiff, and on July 25, 1995, Plaintiff received the Answer of Defendants. -3- There is ample case law for the proposition that reasonable restrictions may be imposed on an employee after that employee terminates his or her employment. In Kevstone Temporarv Services. Inc. v. Johnson. Clarke and The Drexel Group. Inc., Judge Lewis of the Dauphin county Court of Common Pleas held that the covenant at issue in this lawsuit was "reasonable as to duration and geographic extent, and reasonably necessary for the protection of Keystone Temporary Services, Inc. without imposing undue hardShip..." A copy of Judge Lewis I Order is attached to this Memorandum as Exhibit A. other courts have reached similar conclusions. In JUdqe Associates. Inc. v. Belcher, 71 D&C 2d 112 (1975), the court concluded that a restrictive covenant barring for one year the former employee from working for a competitor wi thin a 60 mile radius was reasonable. In National Risk Manaqement. Inc. v. Branwell, 819 F.Supp. 417 (E.D. Pa. 1993), the court stated that a restrictive covenant is valid under Pennsylvania law if it meets a four-part test: (1) the covenant is ancillary to an employment contract; (2) the covenant is supported by adequate consideration; (3) the covenant is reasonably limited as to time and geographic scope; and (4) the covenant is necessary to protect the employer. Defendants cannot reasonably argue that requirements (1) through (3) have not been met. They intend to claim, however, that the covenant is not -5- necessary to protect Keystone because the Defendants have taken steps to make certain that Hammaker is not dealing with any companies or job applicants who were clients of Keystone's when she worked there. Defendants contend that while lIammaker may be partially restrained from dealing with clients she worked with as an employee of Keystone, it would be unreasonable to bar her completely from working in the temporary help business in accordance with the provisions of the restrictive covenant. Initially, we note that the facts will show that Hammaker has participated at events which include present and former clients of Keystone. However, even if there is no direct evidence that Hammaker has been dealing with Keystone I s clients, the covenant not to compete still needs to be enforced in accordance with its terms. The evidence will show that the temporary help business is extremely competitive. Information regarding the pricing of services is proprietary, since temporary help companies bid against each other, in part, based upon price. Ilammaker knows how Keystone prices its services. She knows the strategies and methods employed by Keystone in preparing its proposals to clients. All of this information is now available to Capital Area, a direct competitor of Keystone, whose offices are virtually across the street from Keystone. Even if Hammaker has no dealings with any of the clients of Keystone she dealt with while working for Keystone, her ability to -6- use the information she does have to the detriment of Keystone is substantial. Moreover, Keystone is seeking only to prevent Hammaker from working wi thin 50 miles of Lemoyne until March 31, 1996. This allows Keystone the time it needs to revise its client strategies and pricing methods so that Hammaker no longer can use the information she obtained while working for Keystone to Keystone's detriment. Simply enjoining lIammaker from dealing with Keystone's clients and from revealing or using information she obtained while working for Keystone wllile allowing her to continue to work for Capital Area Temps will not protect Keystone. Such an injunction is virtually unenforceable. For these reasons, the restrictive covenant must be enforced in accordance with its express terms. B. ENFORCEMENT OF THE COVENANT NOT TO COMPETE WOULD NOT IMPOSE AN UNDUE HARDSHIP ON HAMMAKER. The Pennsylvania courts have heI d that the hardship brought about because of the enforcement or a covenant not to compete must be reviewed with an eyo to what is reasonably necessary to protect the interest of the empl oyet'. Jllg91JIlQlLgmL!:.Q,_.YLlnt. Env ironmwt Corp., 427 Pat 439, 235 A.2d 612 (1%7). TheBe interests include -'/- alleges violations of the Minimum Wage Act and the Fair Labor standards Act. Based upon these allegations, Defendants argue that Plaintiff should not be able to enjoin Defendants from continuing to violate the covenant not to compete because of the doctrine of unclean hands. Assuming for the sake of argument that Plaintiff has, in fact, . violated the aforementioned statute, it does not bar Plaintiff's entitlement to injunctive relief. In Stouffel" v. stou!!.fi, 465 Pa. 558, 351 A.2d 236, 244 (1976), the Supreme Court stated: The bar of unclean hands is applicable in Pennsylvania only where the wrongdoing of the plaintiff directlY affects the equitable relationship subsisting between the parties and is directly connected with the matter in controversy. II (emphasis added) There is no averment in any of the pleadings filed by the Defendants which claims that Hammaker left her employment with Plaintiff because she was not being paid overtime or the minimum wage. The evidence will show that this issue was raised for the first time only il.lltl Plaintiff sought its injunctive relief. Moreover, the evidence will show that the claims are baseless. Since the alleged violations of law did not have any effect on ~'-'~-_._~~._..._-------_..".,._,-_.._~-_.>. 11 1"01- example, one who sigl1l3 a restrictive covenant under duress may avoid its applicability using the doctrine of unclean hands. WOl'hlwiWl.J\udit Ssr-v.h;es v. liJ.mlill, 402 "a.Supal" 584, 507 A.2d 772,777 (1991). -9- Exhibit A 0&/101/1995 10: 30 7177[,15<159 hEVSTll I: PERSll.I:L I'IIGE 10 Jo..tx.M1 a. J~ KErSTONE TEHPORARr SERVICES, INC. I I I VS. I I . PEoor H. JOHNSON. SONORA CLARKE I and THE DREXEL GROUP, INC. I IN THE COURT or COHMON PLEAS DAUPHIN COUNTr. PENNsrLVANIA NO. 5182 EQUITr ORDER AND NOW, thia ~~~dey of July. 1994, fOllowinQ a hearlnQ on tho Motion for Preliminary Injunction filad by plaintiff, it is hereby ordered a. follow., la) Defendant Sondra Clarke .hall be enjoined from continued violation of her employment contract with Key.tone Temporary Services. Inc. a. well a, continued u.e of plaintiff'e li.te and information and continued contact with plaintiff'e cuetomer, and temporary employee, in conformance with the employment contract alQned on Auguet 5, 1987. Thia court conclude, that the covenant not to compete contained In aald contract was ancillary to employment, reasonable as to duration and geoQraphlc extent, and reaeonably necessary for the protection of Keyat.one Temporary Servlcea, Inc. without Impoalng undue hardship on Defendant. Ibl Plaintlff'a Motion for preliminary Injunction to enjoin all defendant. from continued contact with plaintiff's cuatomer" appllcanta for fuil-tlme placement aa well ae temporary employees of Keyatone. and continued uae of plaintiff's confidential information and trade secrete i. denied. Thi. court concludes that client lists of Keystone T.mpora.y Services, Inc. are not trade .ecr.t. .ubject to protection aQalnst user disclosure independent of an employment contract. The llete In question are not particular secrets of K.yatone Temporary Servics.. Inc. but rath.r gonoral secrets of th. trade and of the general temporary sorvlcoe/omploymont aQency bu.ln.... Additionally, t.hls court finds that the list of cllanta Ie not oxclusive, can be eaeily compiled from a variety of OG( 101/1995 111: 30 7111&1545tJ H~\'~,lIl1' fHelH.\. PIIGE 11 indlplndlnt lour~II, end WII dlvllopld, et 11est in pert, by thl ImploYln. 01ltrlbut ion I Jamel A. Johnlon, Elquire, 301 Hlrklt Street, P.O. Box 109. Lemoyne, PA 17043-0109 Leonerd Tintner, Elquirl, 315 N. Front Strllt, P.O. Box 741, HbQ., PA 17108-0741 ~.,- ~tS - 19 ~y I hweby certify that the foregoIng Is . true and correct co 01 the original flied, (. . REAGER . ADLER. PC ATTORNEYS AT LAW USl MARkET STREET CAMP HrLL, PA 11011 171.11 18s.1S83 oM . , , A. Employee shall not engage in the employment agency or temporary help business in competition with Employer. B. Employee agrees that he or she shall not solicit or contact any of Employer's clients with whom he or she dealt with 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 Employer's principal office for the period of one (1) year from the termination of his or her employment relationship. Prior to her employment by Keystone, Hammaker had never worked as an employment representative and had never worked for an employment agency in any capacity whatsoever. Her previous employment was varied. It included working (a) for trucking companies as an administrative assistant or a billing clerk; (b) as a secretary; and (c) as a customer service representative for the General Electric Co. Hammaker has computer and secretarial skills, and has taken accounting courses at Harrisburg Area Community College. Hammaker was hired by Keystone to work out of its Harrisburg and Lemoyne offices. she had access to the following confidential information of Keystone. (a) the employment and payroll histories for all of Keystone's job applicants; (b) Keystone's client lists, including contact names; -2- (c) Keystone's rate sheets and fee schedules for permanent placements, and (d) Keyatone's confidential sales strategies and client billing rates. On March 31, 1995, Hammaker terminated her employment with Plaintiff. In her termination letter, she stated that she was ending her employment with Keystone so that she could "stay home with [her] children." On May 1, 1995, Hammaker went to work for Defendant capital Area Temporary Serv ices. capital Area is a temporary help business and is a competitor of Plaintiff. Hammaker is employed by capital Area as an employment representativa, the same position sha had when she worked for Plaintiff. As an employment representativa, Hammaker seeks out potential job applicants in direct competition with Keystone. As recently as August 15, 1995, Hammaker participated in a job fair in which Keystone was also participating. At that fair, companies that are long-time cl ients of Keystone were also participants. Hammaker's exhibit booth on behal f of capital Area Temporary Services was set up not more than fifty (50') feet from Keystone's. On May 26, 1995, a Complaint and Motion for preliminary Injunction was filed by Plaintiff, and on July 25, 1995, Plaintiff received the Answer of Defendants. -3- There is ample case law for the proposition that reasonable restrictions may be imposed on an employee after that employee terminates his or her employment. In Keystone Temporary Services. Inc. v. Johnson. Clarke and The Drexel Group. Inc., Judge Lewis of the Dauphin County court of Common Pleas held that the covenant at issue in this lawsu it was" reasonable as to duration and geographic extent, and reasonably necessary for the protection of Keystone Temporary Services, Inc. without imposing undue hardship..." A copy of Judge Lewis I Order is attached to this Memorandum as Exhibit A. other courts have reached similar conclusions. In Judqe Associates. Inc. v. Belcher, 71 D&C 2d 112 (1975), the court concluded that a restrictive covenant barring for one year the former employee from working for a competitor within a 60 mile radius was reasonable. In National Risk Manaqement. Inc. v. Branwell, 819 F.Supp. 417 (E.D. Pat 1993), the court stated that a restrictive covenant is yalid under Pennsylvania law if it meets a four-part test: (1) the covenant is ancillary to an employment contractr (2) the covenant is supported by adequate considerationr (3) the covenant is reasonably limited as to time and geographic scoper and (4) the covenant is necessary to protect the employer. Defendants cannot reasonably argue that requirements (1) through (3) have not been met. They intend to cIa im, however, that the covenant is not -5- necessary to protect Keystone because the Defendants have taken steps to make certain that Hammaker is not dealing with any companies or job applicants who were clients of Keystone's when she worked there. Defendants contend that while Hammaker may be partially restrained from dealing with clients sho worked with as an employee of Keystone, it would be unreasonable to bar her completely from working in the temporary help business in accordance with the provisions of the restrictive covenant. Initially, we note that the facts will show that Hammaker has participated at events which include present and former clients of Keystone. However, even if there is no direct evidence that Hammaker has been dealing with Keystone's clients, the covenant not to compete still needs to be enforced in accordance with its terms. The evidence will show that the temporary help business is extremely competitive. Information regarding the pricing of services is proprietary, since temporary h~lp companies bid against each other, in part, based upon price. Hammaker knows how Keystone prices its services. She knows the strategies and methods employed by Keystone in preparing its proposals to clients. All of this information is now available to Capital Area, a direct competitor of Keystone, whose offices are virtually across the street from Keystone. Even if Hammaker has no dealings with any of the clients of Keystone she dealt with while working for Keystone, her ability to -6- use the information she does have to the detriment of Keystone is substantial. Moreover, Keystone is seeking only to prevent Hammaker from working within 50 miles of Lemoyne until March 31, 1996. This allows Keystone the time it needs to revise its client strategies and pricing methods so that Hammaker no longer can use the information she obtained while working for Keystone to Keystone's detriment. simply enjoining Hammaker from dealing with Keystone's clients and from revealing or using information she obtained while working for Keystone while allowing her to continue to work for capital Area Temps will not protect Keystone. such an injunction is virtually unenforceable. For these reasons, the restrictive covenant must be enforced in accordance with its express terms. B. ENFORCEMENT OF THE COVENANT NOT TO COMPETE IWULD NOT IMPOSE AN UNDUE HARDSHIP ON HAMMAKER. The Pennsylvania courts have held that the hardship brought about because of the enforcement of a covenant not to compete must be reviewed with an eye to what is reasonably necessary to protect the interest of the employer. Jacobson and Co. v. Int. Environment corp., 427 Pa. 439, 235 A.2d 612 (1967). These interests include -7- alleges violations of the Minimum Wage Act and the Fair Labor Standards Act. Based upon these allegations, Defendants argue that Plaintiff should not be able to enjoin Defendants from continuing to violate the covenant not to compete because of the doctrine of unclean hands. Assuming for the sake of argument that Plaintiff has, in fact, violated the aforementioned statute, it does not bar Plaintiff's entitlement to injunctive relief. In stouffer v. stouffer, 465 Pa. 558, 351 A.2d 236, 244 (1976), the Supreme Court stated: The bar of unclean hands is applicable in Pennsylvania only where the wrongdoing of the plaintiff directlv affects the equitable relationship subsisting between the parties and is directly connected with the matter in controversy. l' (emphasis added) There is no averment in any of the pleadings filed by the Defendants which claims that Hammaker left her employment with Plaintiff because she was not being paid overtime or the minimum wage. The evidence will show that this issue was raised for the first time only after Plaintiff sought its injunctive relief. Moreover, the evidence will show that the claims are baseless. Since the alleged violations of law did not have any effect on l' For example, one who signs a restrictive covenant under duress may avoid its applicability using the doctrine of unclean hands. Worldwide Audit Services v. Richter, 402 Pa.Super 584, 587 A.2d 772, 777 (1991). -9- EXHIBIT A 06/1~/1~~5 10;30 UJlll'~3 "~ljl HI'" lll\~~rl.~r~ .:~r, . tori J. /I ,I mDllI k l.! l' 520 A Noeth Jrd Ste..t 1I'0rmlo)'gLurg, PI. J104,l (7 Jl) fJO-OJ63 Personel In t'orlllitf:iorll_ Birth Placer 8Irt/l DatA: /larri,Llng I j',\ f~bruary 19,1~60 551 18l-42-BSJO Hdllltlll Exr:elhnt ~A.t..tillll Cedal' clift' IIjqh so:hocl, eMnl' 11111, 1'.\ Academic; Septomh~r 1975 to JunA 1~18 II/Jrrlsbueq ArA" CL'nvnunHy (011''19, Hlto'isburg, FA AccounUng; Soptwmber 197/3 to August 1979 LJlUllQy;nen t 1iJ./Jtory: January 1994 to I'resont 1''',1I1HCUI'J1S Ent&eprilHIB, Ino. 3500 IndlJSLri/ll Rd/ld lIarrlnLurq. PA 11110 supBcvisorr fenest Ju~~s ,lob Titla, AdmlnJste4tivlJ Assistant Exper1,mce: . Accounts l'ayohll'/ (open systems Account.tng) · p.'Iyro11 . p"r.sonnlll . /lanJUn'l 11.111 Inr I'rssIdollt ot tt.. Cumpany . Dank DeFosl ts . Ordering of ,,11 supplies Cor the company . 'l)'pin'1 ""rnapond"ncll, telophones, and tiling september 1993 1.0 JI1JlUHY 1994 I'reJqht-I,l1nd-Sky, Inr:. 1000 Sycamore str.et Harrisburg, fA J1104 SuperVisor, rlud Shaffer Job T1tlo: ntlling Clark E:Jlp"rIellClll · Acel,wllt. /llir,;1I11',,111e . R/ltll1~ all billJng . payrull enf:,-y . AssI/Jt In !J]Hlldll'h , l'cepllrln1 "~nk deposH. . Typlllll, telephon.., and tHing PlAlNnFI"B EXHIBIT '. f J ., 06/14/1~95 10:30 111161545~ 03,~1"U3 u&: U 'l1'717 :32 ~\I~lJ t.l:"l J''-'' - , ,- ....;~,... ,-..... T11.~~5lURI'S E~T, .----.- :," Hay 1991 to September 1993 Hn19', Gibbons" Company, IIlO. 7 f:llst tlllil. Strsot Mochllllicsburg, PA 17055 SupSI"visor: Scott D. Br1ggs .rob Tit:la: Socruta.y . Dictation (D1ct~phone) snd typing · Talnpllor.ell . Firllding customor qUlutlons on Unemployment . Filing Unomployment fOl'/ns . Hail · Filing Expe. i8n.:'6: S8pte~er 1990 tu Nay 1991 Vodge City Rostaurant I'axton Street Hud,bu.g, PA Supel'Visor: 1J0U\lldS Krick .ro~ Titl,,: Waitrss. Expor ient:.: . Customer lntaraction walting en tables . Host... october 190U to August 1989 ~enoraJ Electric Compllny 2J33 Hsrket Street Camp Hill, FA 17011 Sup.rvisor: Richard Prestia Job Title: Customer Survlr:e EKperienca: . Large volume of talephone clllls · Set up sarvice calls · Field customer complaints · Invoicing . Typing Ilnd filinV Additional ExvaCJrnC81 Wordperfact ~.l, kotus 1-2-3, aUlttro Personal refe~anC8M available upon ~aqu.5t. QJ~ " 06/14/1995 10:30 71 77615~59 H::VSTll € PERSO I U kEYSTONE PERSONNEL , ~EYSTONE TEMPORARY SERVICES 360 Karkot Streot Lomoyn.. FA 1704] (717) 761-~e60 - -- .... - !!!il'1.0YlWlT AGiBl'Ji!llT Z e ,I n aft err e fer r a rl :J_ lladlymnl-p.-{ . to.. tho 'F.mploy.o') .nd Thh Aguement mid. thlo _ ft; d.y uf !J:.l,T/f', I IV.!l!f, bet"eon kEYSTORB P!RSOKHEL , l!YSTOHE TEHPORARY SERVICES. IHG., a renn.ylvanla Company to . I the 'Employor'), and (hereinafter ..Cerred IIHEREA9. Employer dOll... tu prumote th. growth of Employ.. fo.. the mutual benefit of Employe.. and Employee by insuring .Slinst unCair comp.tition b7 An, one or mar. of 'mplo1eel of Employer who.. lifnplo)'m.nt relation,hip mar c...., and ~IESEAB, tmployer deaire to more Cully .It forth the terma of the employmant r.lationlhlp for the bonefit of bnth tho Employer and Employee. 11011. THEREFORE, In con.ideratloll of the foregolnR. Employe.. .nd Employee agroe e. followe. 1. IIHl'LOnIMT. Employer ehall hire Employee and Employee .hall eorve Employer in the cap.dty of IlIlployment Repreuntat1ve. Employee ehal1 perform ae an Employment Rop",".ntatlve for end cn b.hl1C of the Employer by perCorming certaLn dutlee Including but not lImited Lo thooe dutie. enumerated on Exhibit 'A', attached hereto "hlch ehlll bl cllhd th. job deecrlptlon. Thil job dllcdpUon mlY be modified from tlmo to time by the ~nployer eo long ae thol. modlfic.tlon. relate to the perfolmence of dut.te. "' In Employm.nt S.pre..nut1ve. PLAlNTIR"8 EXHIBIT F\:'ri,0 --'~;' " 06/14/1995 10:30 7177615459 ~:EVSTllE PERSClU_1. Dfl'I.oYHENT AOR!IlmNT Z . II.Ql1&i . Employ.. .h.ll h. ..qui red to "ark on . fiu doy colond.r "eek b.tw..n th. houra of '{:t90-S:00 E..lort. Stondud Tim. through la.t.rn St.ndard Tim. at a location to be Delected by Employer, S. FILES. RECORDS AND UAT^. It Ie und.rstood .nd .gr.od h.r.tu th.t tho nam.., addr....., fil.., Job ord.r., {arm., recordA and other aallent bu.in.GI data of the .ppl'l.cantl .nd client companl.. of Employer con.titute a valu.ble UGlt of Dnployer and are trade IOcrete of th. r.mployor, In the event th.t Employ.e'e employment r.htionehlp with E1nploYAr .hell b. termln.tod, whether voluntully or Involuntarily, Employ.. ogr... that h. or .he will k..p confidential Dueh InfOrmAtion, that h. or ehe will not attempt to benefit poreonaUy In eny vay from the dhelo.uu of 8"y euch informAtion relotln& to add cllento, that h. or .he viII not .ell, give or di.clo., any .ueh name., eddreea,. or other e.lient buelne.. data of Employ.r'. cilento to any competitor of Employer and, th.t h. or .h. will not make any offort, dluctly or Indirectly, on hie or her 0"" b.holf or on the beh.lf of .ny other perlun or buelne.. entity to .ncour.g, .ny of e.id eUent. of Elnplot.r to withhold their p.tronag. from Employer, It I. further under.tood that no files, r.cord., tH. uth.r ullent budne.. d.te of Employer .h.ll b. removed from the office. of Employ.r without the upr.eA prior conaent of Employer, 4. TRAININO. Elnployer .h.ll b, reeponelhle for providing tr.lnlng .t it. own exp.neo to t.he b.n.fit of Employ.e in order thet he or eh. m.y Improv. hh or her .killo II an ElDploJlll.nt Reproe.ntetlv.. The amount of GIld training, the location of .eld training .nd t.he ..t.ent. of .uch tr.lning ,hall be at tho diler.tlon of Employ.r, S. FACILlllli. Employer eh.ll "0 r"'llon.I~I" for providing .11 f.dUtl... n.e..eary for the performance of dill I., a. .n I':lnl,loy...nt Repreeentetlve, e. PIlOBATION. Employ.r and Employ.. Ol'knowledge th.t tho fir.. ninety (POI daya of the Ernploym.nt Agreemenl .hal1 cnn.titut. wh.t Ie known a. a OG/1.1I1SS5 10:30 71 77G1545S ~,EY5TOE F1:RSO.n PI\GE 05 'prob.tionery period". At the concluolon of ..Id probetlonary period, Employer thall heve the right to reteln or dlucherge Employe. with or wllhout c.u.., nnployer (urther reurvee the right to terminate eny tim. theredter en employee not fully complying with hit or her Jou uAocr/ptlon and dutiea II directed, or en7 r..tont Illtad under perlgrtph eleven (II), Termination, 7. RBSTRICTIV~ COV!N~r. Employea doet horeby ..p,.....y cOVlnent, promi.. and egrea that during the turn uf hll Dr her eml,loyment .nd for a period of on. (1) yur following th. termination of hll or h.. employment, for lny r...on what.oever, he or ahe .hall not, either ftI prlnclp.1 or on behalf of, or In conjonction w1th, an7 oth.r penon. firm, pBrtnerohlp. company or corpoution. either e. agent, employe., pertner, officer, director, I'oo.ullont, or ony other capacity, directly or Indirectly, wllhin e redlus of filly (50) mile. from Employer'. principe I offlc. do any of the followlog' A. Employ.. .h.1l nllt ongtge In the .mployment egency or t.mporary help buolne.. in competition with Employer, B. &nIploye. .g..". thot he or eht tholl not .oliclt or contRct any of Employer'. cH.ntt with whom h. or .he dtllt during the employment rtl.tlonehlp. O. Employ.. .gr.e. thet h. Dr .he 8hell not aoHelt, divert Dr take eway p"tlntiol eppUcentB or client comp.niee of Employer within ..Id f1fty ('0) mUe rediuI of Employ.r'. ptlndpal oHice for tho period of one (1) yeer from the tormlnaUon of hh or her employment r.1BtionBhlp. 8. COKPKNSATION. Employer ogr... to r:<'mp.n.ot. Ett,ployeB for the porformancD of Illaplo7U'"nt llaprelentaUv. In the fullll1/lnK monnr., I the Employee .hBll eernJGJ),oO per week, plu8 bonus If qu.lifl.., 9. BENEFITS. Employer .grtel to .'roville .alaried Employee the following fringe b8nef1tll A. VlcBtion II accllmulated at B nte of 83% per month or 5 daY8 for ..ory 6 month8, Aft.r 5 rure, 3 "..k. vaclUon 11 ulnod ot I rete of 1. 25t l'lr month. Thlt is cllculatod from YOllr onnlvorelry date to your InnLvernr,. uet., Vlr'tion tlmo can not b. carried over from yoar to year, it. r:1U,t \m URlld by rOUt enniverl.ry datil ~. . ;,.- . '- .., KEYSTONE PERSONNEL' KEYSTONE TEMPORARY SERVICES, INC. 360 Market Street Lemoyne, PA 17370 (717) 761-5860 FAX (717) 761-5459 JOB DESCRIPTION EMPLOYMENT REPRESENTATIVE Employee shall represent Employer fer the purposes of securing employment for Employer's applicents and securing ~ualified applicants fer placement with Employer's client ec".pnies. Arnor.g the responsibilities and expectations in advancing toward these goals, Empleyee shall. 1. t.:!ke a minimt:.":1 cf 15 telephe~.e calls Fer ~ay to secure r,el< job orders I "hile in traini~g, ho"ever. ;:7.Flo)'ee is E>:Fected to make a minimum of so telephone calls Fer day to sec~re new jo~ orders; 2. Obtain bona fi~e Job Orders fre~ client ce~Fanies. 3. Stri\'e to ex,a~1 tr.e nt:.'T.ber ef client ce""anies ,;ho ....ill utilize the professional serdces of !:mplC)'er. 4. Frepare and cause sd\'ertise~ents regularly in order to solicit qualified aFplicants. ;:7.;:10)'ee shall to entitled to _ lines of a~...erthing per ,.eek (see me~o fer individual lineage). 5. Screen and interview applicants in crder to determine ~ualifications. 6. Ccn~uct reference checks eit~er by telephor.e, forn letter or other correspon~ence. ~eference c~seks should be dcne on all ap;:licants prior to send outs. 7. Refer qualified applicants to client ""',panies (by prcdding a client ce:r,par.y with a ..lection cf reSl:..7,es) ar.d, similarly, enenge persenal interviews cet...een applicants and client ce:rFanies (send cuts). 8. Froperly doc\:""ent all tranHcticns, discussier,s and processes from time of initial contact ...ith applicent through interview, acceptence. placements cr assig~'T.ents, This includes ~aintenance ef referral sr.eets of current ectivity and preper notations en all files. 9. Negotiate in a professional ~anner as an intermediary applicants and client cc~panies to cc,c,unicate information and avoid misun~erstandings, and crcker between full end ccmplete 10. ~aintain continued positive relaticnships with all client ccmpanies and applicants to ~enitor their needs and present status. 11. ~:ate-every effert to discharge all reeponsibllities in tr.e most efficient and cost-effecti\'e manner. PlAINTlFPs EXHIBIT 8/.)l'U~ L"" - '-"~, ',.. .' . 12. Attend all professional, job-related conferences, seminars and training event a as may. from time to time, be required by Employer when~ver posaible. 13., Haintain accurate and timely records of any incidental expenses for which reimbursement may be expected. 14. Hsintsin accurate contact log ,heets and statistics ss may be required by Emplo)'er. 15. Endeavor to prcmote the profeEsiona1 reputation of Emplo)'er within the area's business co~~unity. . . . --~._~- .-.----.---..-- --. ___~2.I-q5 '5/1 p~ ,__-----.- -,--- ---- -- . - ---. ..-.-.,. .--' .__.._~--- ______.__..______.euCLdC ClCL-f.{li:..t/uLL . Q/.2.um.'1:~--1~~\ .. _______ (fIJLJ_J!oAl,-;~- ,u:J-<J.d_.~---flIMJ..,-5Tlg!l5---'.J.Jf,.;JJL---- .___ __1m.'MI _Ml&Ur4._ut,,-,-/3. dP.1,(:J _~ ~wi_n _.__ _____ Uoca.ti~~__r~. __~ ~ . <~_.3_:.5~ ---..------ ---'-- ---- ----. -. -. -_. -"--------"- ____ ____t.t.._a17J '- {Jp C'.{ ~~i-..cL Lt ~ . 6-.fLyj~t1J AJ7n .:1_ }lfrm L w..-dh. - -1fuj. . t.iu1.t.tJw-~----- ------~-----_. -_._- - -------. -------. _._____Ll_JJ.(L...uJ..-~~J]jlci _ ~_ _t"u:.. (>.;t. K't? l-f/.J5'.-r. J...) Cl.Ll (jDl.l kJJlJ.M/_arfLjlJJ;U.. _ u.J~_~ C19'7t:1<..11.-uL. J:i!..l1n.lll, r1 g'SXd.Ji.dA...tl.iJ"'.A A_:~....yh 7J..L (~diItJ , ~~ fl' -----:-.. _-=.J~;~v'lj--~--- -~==-=~---= -X;~~--V-~r~ .,-.---.,- ----. ~_..,._. .._.._-- --'~' . ------ --'--. ---- -- ._,.., -.---- .. ,.---.. --- - ,.,-.---- ---------.--------...---- --------.- -,. ..- - .-.--------..-....;..- PlAINTlFf'8 EXHIBIT , f'J).'hll)' C... ( Y ----.-- -.-.-..-......----..--.---.. . ...--,., -..--".--,-,..---". .._--_..~.,_..~_._-- " -~- ZQ 3Wd '"f.tISd3J .~.)lSi,3~ lSl,19UtL ('('01 ~l&'/~II~Q DEPARTMENT OF TIlE AIlMY HEADQUARTERS CARLISLE BlRRACKS CARLISLE, PEHHIYlVAHIA , 10'3,'002 Auqust 1, 1995 ""It '0 .1'1""011 C:, Ann)' cOl1\ll\llnity Service SUBJECTl Carlisle BarrackK 7th Annual Job Fair Dear Colleague: This letter ie a follow-up to our first letter dated June 21, 1995 concerning the 7th Annual Carlisle Job Fair being held on August 15, 1995, at the Carlisle Barracks Cmrununity support Center, (old Officers' Club) Euilding 313, from 2 p.m. to 7:00 p.m. First I would like express my thanks for your participation In thi. mutually worthy progra~\. Curing these times of high unemployment, it is very important to I1'ske contact with the individuals who are in real r.eed of employment, as ",all as those individuala who have just ~rr~~~j in tho area and are juat atarting their surch for CUI' 1; ",:T":lt, En~losed you will find a copy of tho "trip map of Carlisle Barrack. with the Community Support Center and parking area highlighted. Please fold thil paper and display the "EXHIBITOR" ,.ction on your automobile dalhbcard when entering Carlisle Barrack" w. are asking that III employerR arrive between 12 noon and 1 p.m. on the day of Augult 15th to ensure that ell vahicle, gat unloaded and parked before c~r orientation which is Bchedulod tor 1145 p.m. Th, Military pollco have been alerted cor.coming thil event and will direct you to the Cc~~unit.y Support Center. '{au may unload your automobiln in front of the Center, but will then be directed to park els.where, ~,have forty parking places r,..rved for the o::lployers Gn a "flret conI! - first served" ba.i.. Cones will b, sat up by the Military police reserving th.s. .pac... Pr.I!ASE 00 /lOT 110VE rUESE COllES. If YOll participated in the Jcb rair last year, you already know that parking i. vRry scarce on carli.l. BarraokB. I wculd aleo caution you not to park in any psrking Bpace designated as a ten minute, thirty min'.lto parkir.g or car pool parking, The 11ilitary Police will not heeitate to ticket tho8u cars. . ~...~ ., _';' Q",..1n""tl a 1l',IO of the intlnior of the COl1\lnunity PlAINTIFF'S EXHIBIT I1bty"i', 7 (.1fi.' } illJQI]lill (?-~ I UTI lliJ i IHrrEJ [W[]D 10 Lounge CJ UD on [llJ GJ tiJ DIJ.lIiJ tllJ ~ GJ 1 o B @ @. y III 3'(, 43 Yu 37 , B lj~ 31 JS , '31 " 33 GTI IT] UJ CI ObbJ' CLOAK AOO~,' t;!1PL.?YE~S 1 7. J..E ;:__~">:ASF(:':J:jDA7ION 18, r.;::;:l:CKY ::"IEJ CHICKEn ~ 9. r':E LLCN EA.!:K 20, 5l-:'_"f It;S :-'J,.RKETS 21. ;...~;P 22, V:C:CRY EXPRESS - 23, C;,_::,L: SL!::: :03 CE:-JTER -----' 2';, PE~l:A. C:V:L SEf\VICE .5, B~SEhU OF STATE EMPLOY, ~..!5. 1,'1510:: Q\.,-i5T .., .,27. HERSHEY 11EDICAL CENTER CIVILIAlI FERSO}.')lSL 28, I;CF.';'",:,ESTE?.}; l,rJTUA:. LIfE' CHII.D';'IME SACC 29. SCH!;EIDER NATICl'AL -14, ....-A!J.1' INC, 30. PA S';'ATE POLICE );1..,15, ~ BOOK OF THE lJ.O:,TH CLea.' 31, KELLY TEMP SERVICES 4 (-. ~ COMPUTER LEhRN ING I\ETWORK 32, PRt:L;E:-;TlAL 1:15, COI.Ii'A.'fi 47. KEYSTOllE TEMI' SERVICES 33, no:; ':'CN .; 8, WENDY'S ,P'>-34 .1CAW,:SLE.H~~prT1\L 0:9, l1TA SCHOOL 35.c'A.P:lt$;,!0.~~::-TEr1P~ i MOlfu-XENTAL LH'!:: U;SUilJ.J:CE Jb, r~E~~IlERS-is7.tL.. ,;,... ), FA.G.11ERS TRUST COI1PA.>.JY 37, RESTART TEHPS I Il;C, l, MANPOWER ]8, r.l<:r LIFE I, JACK GAUGHEN RE^L70R 39, JFC ASSOCIATES I, RADIO SHJ,CK 40. 1lC',w',IA Y PACK!,Gl:: SYSTt;X \, PRIMERICA FINA.'1CrA!, 5\'5. 41, HIRE Qt:ru.ITY I, SHEETZ, INC 0, fED. nlJREAIJ OF PRISONS " TUCKEY l'oECHANICJ\L __. ~j. H:iJ, CGPRECTlONI\L H:S7. 'I " /X'M~ {tvU,Ji.lc'J" J (;,'7 a)h/ Stair Dining Room , UNITED TECHNicAL ASS PNC BANK ROADWAY EXPRESS, I~C D\1YER GROUP TRADE TURKEY HILL HARY KAY STRADLEY RONaN Sl'EVENS <XYOUNG .\Utlllll'\ ~\I I .1\\ !hlltl 'hn- t IIIlUlIn" ,. "llll,IH' l'hH;ltldl1hlJ. IIt"UII"hJIlI.! 1'1111\ ~IIIIH 1.1\ t.!I.., 'ill. HUll "1~1\l1l1_ l'rlln.,hmIJ I hlln 11I11- 'I'\~ Ju..q A.IUIlJlnlllllll'- \ ind.1I111 Nnl. Jet'.., IIUlllll) 1't'I'I'l"f Irlil\iU;llIl UdliUlIlI ;lIllll,UIIOI~ I'''', !\;llllh-.I i\ hiriLlhll UI'i1 'jht.HOhl August 24, 1995 VIA FEDERAL EXPRESS Honorable J. Wesley Oler, Jr. Cumberland county Courthouse One Courthouse Square Carlisle, PA 17013 Re: Xeystone Personnel , Xeystone Temporary Service., Inc. v. Lori J. Hammaker and capital Area TemDorarv Services. Inc.. No. 95-2882 Dear Judge Oler: In anticipation of the hearing which will be held on August 28, 1995, in the above-referenced matter, I enclose Defendants' Brief in opposition to Plaintiff's Motion for Preliminary Injunction. This brief will be filed with the Clerk on the day of the hearing. By copy of this letter, I am serving opposing counsel with Defendants' Brief via overnight mail. Very truly yours, Jl4-dtfL /ftJ" LJ Sandra A. Girifal;o~ - eMS/ce Enclosure cc: Theodore Adler, Esquire 171m According to the Agreement, Ms. Hammaker was hired to work as an Employment Representative 5 days per week, 0 hours per day. she was paid $360 per week. However, shortly after the start of her employment, Keystone required Ms. Hammaker to spend a significant portion of her time performing the duties of a cleaning person, delivery service, telemarketer and receptionist, and working well beyond her scheduled time, for which she was not compensated. On March 31, 1995, after less than ten months at Keystone, Ms. Hammaker voluntarily terminated her employment. On May 1, 1995, Ms. Hammaker began employment with capital as an Employment Coordinator. On May 26, 1995, Keystone filed a Complaint and Motion for a Preliminary Injunction seeking to enjoin Ms. Hammaker's employment with Capital based upon the "Restrictive Covenant" found in the Agreement. Keystone's motion must be denied because (1) Keystone cannot meet the threshold requirements for issuance of a preliminary injunction and (2) Keystone's claims, which sound in equity, are barred by the clean hands doctrine. B. Employee agrees that he or she shall not solioit or eontaet any of Employer'e elients with whom he or she dealt during the employment reletionship. C. Employee sgrees that he or she shall not solleit, divert or take away potential applicants or client eompanies of Employer within and fifty (50) mile radius of Employer's principal office for the period of one (1) year from the termination of his or her employment relationship. -2- prohibiting them from el~aging in employment in competition with Rollins for a poriod of two yoarD. Although the trial court found the employmont agreements valid, the court denied Hollins' motion for preliminary injunction because Rollins (ailed to establish any harm at all reSUlting from the employees' violation of the covenants not to compete. Id. at 601, 557 A.2d at 413. The Superior Court affirmed the trial court's decision noting that since Hollins' former employees hod not stolen or solicited any of Rollins' customers or taken any customer lists, Hollins "was threatened with no greater harm to 'customer relationships' from [its former employees], than from any other similarly situated employee not formerly employed by [Rollins]." Id. at 602, 557 A.2d at 414. Dased upon similar facts, the Superior Court affirmed the denial of a preliminary injunction in Harsco Corp. v. Klein, 395 Pa. Super. 212, 576 A.2d 1118 (1990). In Harsco, a 19 year employee named Klein terminated his employment with Harsco and began working for a competitor. The court denied Harsco's motion for a preliminary injunction to enforce a restrictive covenant because "there was no likelihood of immediate and irreparable harm to Harsco by refusing the injunction." Id. at 217, 576 A.2d at 1121. ~'he Superior Court affirmed noting that when Klein resigned his employment he was not dealing directly with clients and that "in any event the customers in [Harsco's industry] would be generally known to all of the firms in the same business. . ,II Id, -4- An alleged violation 01 u restrictive covenant by itself is not enough to warrant the issuance of an injunction. Ms. Hammaker is not competing with Kayntone because she has not knowingly solicited or diverted any of Keyntone's clients nor has she ever knowingly diverted any potential applicantn from Keystone's employ. Moreover, as in Hollins and l1arnco, the customers in the temporary personnel field are generally known to all companies in the same business as Keystone. As in pollins, Keystone is not threatened by Ms. Hammaker any more than it would be from any other capital employee not formerly employed by Keystone. Keystone's own actions contradict its allegation that it will suffer immediate and irreparable injury if a preliminary injunction is not issued. Keystone knew Ms. Hammaker was intending to commence employment with Capital as early as April 13, 1995. Nonetheless, Keystone waited nearly six weeks, until May 26, 1995, to seek a preliminary injunction and then, after filing its Motion, did nothing to expedite the resolution of this matter, either through request for an emergency hearing or otherwise. Keystone can not show that it has suffered or will suffer immediate and irreparable injury and, therefore, its request for a preliminary injunction should be denied. 2. Keystone Does Not Have a Clear Right to a Prelimilli!U'_Jnj!!m:1.;Lol} .___ Keystone can not establish a clear right to enforce the "Restrictive Covenant" against Mn. Hammaker. In order for a covenant not to compete to be enforceable in -~- Hammaker, it shou 1 d not be en IOITed. li~.g 119I.9iHl'-[L!!QF].,._J~m!inmel!t Corp. v. Martucci, 390 I'a. bIll, Db A.2d 038 (1957) (Court refused to enforce covenant pl:ohibiting former employee from working for competitor within 100 mile radius for one year on basis that c~venant posed an undue hardship on employee but was not reasonably necessary to protect the employer). b. The EmJllQyment Agreement is Unenforceable Keystone can not now enforce the Agreement because it materially breached the Agreement during Ms. Hammaker's employment. ott v. Buehler Lumber Co., 373 Pa. Super. 515, 541 A.2d 1143 (1988) (party who materiallY breaches contract can not complain of breach of contract by other party); United states v. curtis T. Bedwell & Sons. Inc., 506 F. Supp. 1324 (E.D.Pa. 1981) (same). Paragraph 2 of the Employment Agreement states that the "Employee shall be required to work on a five day calendar week between the hours of 8:00 - 5:00." See, Exhibit "A" to Keystone's Complaint at , 2. In actuality, Ms. Hammaker was routinely required to work through lunch, in the evenings, and on weekends and to be on call without being compensated. Furthermore, Paragraph 1 of the Agreement states that Ms. Hammaker was hired as an "Employment Representative" and her job description could only be mortified if the modifications related to the performance of duties as an Employment Reprosentative. NonetheloBB, os diucussed above, Keystone did /lot omploy Ms. Hammaker Bolely as an Employment Hepresentative an pl-omised in tho Agl'eement, but rather, it -'1- required her perform a vadety of tiwks totally unrelated to the work of an Employment HeprCl;entilt i ve. Under pennsy 1 vania 1 aw, Keystone's material breaches of the Agl-eement void any obligation Ms. Hammaker may have had under the Agreement. B. Kevstone Comes to This Court with Unclean Hands Keystone may not invoke the equitable powers of this Court because it comes to this Court with unclean hands. As has been stated by the Supreme Court of Pennsylvania for over a quarter century, "He who seeks equity must do equity." I~azer v. Sarqent Electric co., 407 Pa. 169, lBO A.2d 63 (1962); Spraque v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). The clean hands doctrine is applicable "where a party seeking affirmative relief is guilty of fraud, unconscionable conduct or bad faith directly related to a matter at issue which injures the other party and affects the balance of the equities between the litigants." Equiblmk v. Adle. 1no" 407 Pa. Super. 553, 595 A.2d 1284 (1991). As discussed in detail above, Keystone knowingly breached its Agreement with Ms. Hammaker from its very inception. Ms. Hammaker never acted solely as an Employment Representative for Keystone. Further, Ms. Hammake," was regularly required to work evenings, weekends, through lunch and was required to be on call. Keystone never paid Ms. lIammaker for overtime even though it was required to do so unde,. the Filir l.abor titandards Act, 29 U.B.C. S 20] et seq., pennsylvania'n Minimum Wage Act of ]96B, 43 1'.13. S ])] .101 et seg., and 'l'he W,~qe Payment ilnd Collection Law, 4:J 1'.1l. 260.1 et seq. "B- CmlT l .'lC!\T!L.9f._PEIlY!CE 1, I'lIlhluul1 M. :;lI'yku,', hereby certify that 011 this 24th day III AII<J II II I , )1)')'), I caulled a t.'ue and correct copy of Defendants' 111'101 In opplJlIlIlon to Plaintiff's Motion COl' Preliminary Injllnctlon 10 be nerved via federal express, overnight delivery IIpon cOlll11101 IllItod bolow: 'J'hoodore A. Adler, Esquire Reager & Adler, P.C. 2331 Harket street camp Hill, PA 17011-4642 ~~z~ 1111\1 Ii Iii J'l; o j 1 fg 'IH E )1; J Jj r o Jii51 .2' ~ II ~ /;~ i ji Iii o fil 'r~ e~ .iH ;fH .~ , ".,.. '1-' Q.' 111 Vl -J } <ll"tl n - c. t- ~;;"9 ~ .;; ~ ~ 'b~6(~ ~u :~ .' CI , I~.. _ I ,,~ .'!: ~ ~~ ,r;., ~~ m il' .l.) en 1::' '-' . ~:b ~~g8 ~ t litem' " o g 31 N :5 'j 'E~ OJ E., ~ l~ ~ ~ i~ ~ 0 & H N" rJ; a.. '-' I::: :::l C if.:; " - ,- - I::: ,- , ...... -- ,- tC ,- ~ ' .~ :::: . 0 " . . " u . " . l, t 0 , . E . I:: ~I 0 . .- ~ .... -....l:I:l " ~ e I ~'E :;>- -< e:< i - ~e Q.)o ~ ~ I .. · \i) ~ :s ~CS) ~ ~ t,i! ~ ~ ~~ c; ~ . ~ r- ] l S ,! ,~, ; ! ~:; ""C ........!!: i. T' '1 ~ .....J ilI'J ~ I ~ !l: l1.I l- I- l1.I ,..J I i I ! .JL,' i '..ttf:"','VJ.l::-"J'O r----- \::wI ~ .~ h ...... ~ .... ! ~ ~ i ~ l"l ~ .. ~ I r 3 i i ~ i k- ~ ""'t..""'II1I _S4"",, " . :1..~ '''\'i,.~....,. '.:'.- I "1" . _I" . . 'I \'l" \ \ ;\" I \. l' '.~\r ~ , ":\ ~ t7' }(", ""1 'I ~.' T ,t~ 0 I') 0 ,.., \ \ l[l -1- I') 00 .... '" I ., '" In :z ... :':) ... N tJ >- ~ ... IlJ 0 ft" ... VI ... ... :r. :;) UJ 0' ~ VI IlJ ... IlJ VI lJ 0 '" :r III 0 r 2" lr of i 0 0 ... at U :J: >0- III ~ LU Z III ,..J t'l 0 , ~ I t:l ... ... n ,..J tY 0 ... ... .(l x ,,' N n. .. - . \.,i '-' = < :l = ' = ,. ;: :l::l " , ''',.... ;~ \: ~ .... Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of this allegation which is, therefore, denied. 5. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief 8S to the truth of this allegation for the reason that they do not know to what time period Plaintiff refers. It is admitted that Capital Area is in the temporary help business and is a competitor of Plaintiff. 6. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this allegation for the reason that they do not know to what time period Plaintiff refers. It is admitted that Ms. Hammaker has been engaged in performing services as an employment representative. 7. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as Ms. Hammaker's reputation in this regard. 8. Paragraph 7 of the Employment Agreement, being in writing, speaks for itself and therefore no response to this allegation is required. 9. Admitted. 10. Admitted with the exception that Ms. Ilammaker became employed with Capital Area May 1, 1995. -2- 11. Denied. On the contrary, Ms. Hammaker has not competed with Plaintiff and has not solicited or otherwise taken away Plaintiff's employees or clients. 12. This allegation is a conclusion of law to which no response is required. WHEREFORE, Defendants Lori J. Hammaker and capital Area Temporary Services, Inc. request jUdgment in their favor and against Plaintiff Keystone Personnel & Keystone Temporary Services, Inc., together with costs of suit, and any relief the Court deems just and proper. NEW MATTER 13. Plaintiff does not have a likelihood of success on the merits and is not, therefore, entitled to a preliminary injunction. 14. There is no threat of immediate and irreparable harm and, therefore, Plaintiff is not entitled to a preliminary injunction. 15. Plaintiff's claims are barred by Plaintiff's own breaches of the Employment Agreement. 16. Plaintiff's claims are barred by Plaintiff's violations of the Fair Labor Standards Act, The Minimum Wage Act of 1968 and Pennsylvania's Wage Payment and Collection law. 17. Plaintiff comes to this court with unclean hands. 18. The non-competition clause in the Employment Agreement is invalid as a matter of law. -3- 19. The non-competition clause in the Employment Agreement is not reasonable 1n time or scope and not reasonably necessary to the protection of Plaintiff's business interests. 20. Plaintiff's claims are barred by a failure of consideration. 21. The Employment Agreement is invalid. 22. Ms. Hammaker has not solicited, diverted or taken away any employee or client of Plaintiff. 23. Ms. Hammaker has not breached the employment Agreement. WHEREFORE, Defendants respectfully request judgment in their favor and against Plaintiff Keystone Personnel & Keystone Temporary Services, Inc., together with costs of suit, and any relief the Court deems just and proper. COUNTERCLAIMS OF DEFENDANT LORI HAMMAKER COUNT I - Violation of the Fair Labor Standards Act. 24. It is believed and therefore averred that Plaintiff is an enterprise engaged in commerce whose annual gross volume of sales made or business produced, exclusive of retail excise taxes, is not less than $500,000. 25. Ms. Hammaker began working for Plaintiff in June, 1994 when she was hired to be an Employment Representative. She voluntarily terminated her employment effective March 31, 1995. 26. During the course of her employment, Ms. Hammaker was expected to perform duties beyond those of Employment -4- Representative, including receptionist, cleaning lady, telemarketing and messenger duties. 27. While employed by Plaintiff, Ms. Hammaker was a non-exempt employee under the Fair Labor Standards Act (FLSA"). 28. Pursuant to the FLSA, Plaintiff was required to pay Ms. Hammaker time and one half for every hour Ms. Hammaker worked in excess of 40. 29. Ms. Hammaker was expected to and frequently worked in excess of forty hours per week, both in the evenings and on the weekends. In addition, Ms. lIammaker was expected to and did work through her lunch hour on a regular basis. 30. Plaintiff knew, or should have known, that Ms. Hammaker was working in excess of 40 hours per week. 31. Pursuant to Plaintiff's practice, Ms. Hammaker was permitted to show only 8 hours per day on her time records. 32. Ms. Hammaker's hourly rate while employed by Plaintiff was $9.00. 33. Plaintiff did not pay Ms. Hammaker for the hours she worked in excess of 40 in any workweek. 34. Plaintiff violated the FLSA by failing to pay Ms. Hammaker overtime pay for hours worked in excess of forty per week and by failing to keep accurate records of time worked. 35. Certain records that will assist in the determination of the overtime compensation owed to Ms. Hammaker are within the exclusive control of Plaintiff and Ms. Hammaker is unable to state at this time the exact amount owing to her. -5- These records should be made available during discovery and Ms. Hammaker will then amend her pleading herein to set forth the amount due her. 36. In addition to the amount of overtime compensation due her, Ms. Hammaker is entitled to liquidated damages in an amount equal to the amount of overtime compensation owed plus reasonable attorney's fees and costs which are mandatory, pursuant to 29 U.S.C.S. S216(b). WHEREFORE, Defendant Lori J. liammaker respectfully requests judgment in her favor and against Plaintiff Keystone Personnel , Keystone Temporary Services, Inc., for her unpaid overtime compensation, liquidated damages in the same amount and reasonable attorneys' fees and costs, together with any additional relief the Court deems just and proper. COUNT II - Violations ot The Minimum Waqe Act of 1968 37. The allegations of Paragraphs 20 - 36 are incorporated herein by reference. 38. Plaintiff is an employer and Ms. Hammaker was an employee of Plaintiff within the meaning of The Minimum Wage Act of 1968 ("MWA"). 39. Pursuant to MWA, plaintiff was required to pay Ms. Hammaker time and one half for every hour she worked in excess of 40 in a workweek. 40. Plaintiff's failure to pay Ms. liammaker time and one half for every hour she worked in excess of 40 in a workweek -6- CERTIFICATE OF SE~E I, cathleen M. Stryker, hereby certify that on this 24th day of July, 1995, I causod a true and correct copy of Defendants' Answer to Plaintiff's Complaint, New Matter and Counterclaims to be served via first-class, overnight U.S. mail upon counsel listed below: Thsodore A. Adler,Esquire Reager , Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 1/ ,/ ( (( /{ \ CATHLtEN M, II. J , M 16ml VERIFlCATION BRIAN GAUGIIAN hereby etatee that he is Vice proeident of Capital Area Temporary Services and that the facte set forth in Defendants' Response to Plaintiff's Motion for Preliminary Injunction are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to tho penalties of 18 Pa. C.S.A. S4904 relating to unsworn falsification to authorities. . "'-"..):(-4.' '- ,,,./ BRIAN OAUGIIAY . I , -t';,. ./;11... .- ..f / Datedl 161110I 1/"I,/'} KEYSTONE PERSONNEL , KEYSTONE TEMPORARY SERVICES, INC., Plaintiff IN THE COURT OF COKMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. LORI J. HAMMAKER and CAPITAL AREA TEMPORARY SERVICES, INC., IN EQUITY Defendants o R D E R AND NOW, thJ 5 day of , 1995, after a hearing on Plaintiff' 5 Motion for Preliminary Injunction, said Motion is hereby GRANTED. BY THE COURT: J. Exhlhlt A ~YSTONB PERSONNBL , KBYSTONB TEMPORARY SERVICES, INC. 360 Market street Lemoyne, PA 17043 Plaint! ff I IN THB COURT or COMMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I I I I I NO. v. LORI J. IlAKHAKER 21 Heidi Terrace Camp Hill, PA 17011 and CAPITAL AREA TEMPORARY SERVICES, INC. 839 Market street Lemoyne, PA 17043 Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do 50, 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 TA~ THIS PAPER TO YOUR LAWYER AT ONCE. Ir YOU DO NOT HAVB A LAWYER OR CANNOT AFFORD ONB, GO TO OR TELBPHONB THE OFFICB SET FORTH BEr~W TO FIND OUT WHERB YOU CAN GET LEGAL HELP. Court Administrator 4th Floor cumberland county Courthouse One Courthouse square Carlislo, PA 17013 (717) 240-6200 4. On June 6, 1994, Plaintiff and Defendant Hammaker executed a written employment agreement (hereinaft~r "Employment Agreement") by which Plaintiff agreed to employ Defendant Hammaker as an employment representative in consideration of Plaintiff pay ing Defendant Hammaker $360.00 per week. A copy of the Employment Agreement is attached hereto as "Exhibit A." 5. At all times relevant and material to plaintiff's cause of action, Defendant capital Area is a temporary help business, and is a direct competitor of plaintiff. 6. At all times relevant and material to Plaintiff's cause of action, Defendant Hammaker has been engaged in performing services as an employment representative. 7. Defendant Hammaker has the reputation of possessing certain skills in the rendering of such services. 8. By paragraph seven (7) of the Employment Agreement, Defendant Hammaker agreed that during the twelve (12) month period immediately following her termination of emploYlnent with plaintiff, she would not, in any area within f !fty (50) miles of any of Plaintiff's businesses, engage, either directly or indirectly, in competition with the business activity carried on by Plaintiff. 9. Defendant Hammaker terminated her employment with Plaintiff on March 31, 1995. 10. In April, 1995, th'3 exact dllte of which is unknown, Defendant Hammaker obtained employment as an employme'lt -2- representative with Dsfendant capital Area, a business located within fitty (50) miles of Plaintiff's business and In competition with Plaintiff. 11. Upon information and belief, Defendant Hammaket" has, since the date of her employment with Defendant capital Area, engaged in the temporary help business in competition with plaintiff and has or will solicit, divert or take away persons and companies who are potential applicants and clients of Plaintiff. 12. The aforementioned actions of Defendant Hamllaker constitute breaches of the Employment Agreement. WHEREFORE, Plaintiff, Keystone Personnel' Keystone Temporary Services, Inc., respectfully requests this Honorable Court tOI (a) permanently enjoin Defendant, Lori J. Hammaker, from soliciting business from or rendering services to any person or entity which violates the terms of the Emp:oyment Agreement for II period of twelve (12) months from the date of the termination of Defendant Hammaker's employment with Plaintiff I (b) permanently enjoin Defendant, Capital Area Temporary Services, Inc., froro soliciting, obtaining or using the services of Defendant Hammaker for a period of twelve (12) months from the date of the termination of Defendant Hammaker's employment with Plaintiff I -]- KEYSTONE PERSOHllEL , KEYSTONE TEMPORARY SERVICES 360 Market Street Lemoyne.,A 17043 (717) 761-5860 DiPLO\'P."!I'f hGREEHENT This Agree"'e:1t made this (; day of .[):L-11r, ,19.!l!/. KEYSTOIlE PER50HllEL , KEYSTOIlE 'fEP.POR.~ SERVICES, II/C., a Pennsylvania bet\,'een ~h.Jre.inafter . referred 0t.J2I, /0d~--:.r,n h /1 , to as tl-,e ';:mployee') a:1d \iliEREAS. !:::-,plc)'er desires to promote tr,e growth of !:~plo)'ee for the mutual benefit of ;:'T.plo)'er and Emplc)'ee by insurir,g against unfair eompetiticn by anyone or more of emj'lo)'eea of E:r.;>lo)'er "hosa employment relationship may t ~ as the Company 'Employer'), and (hereinafter referred eea sa; and \,'JlEREAS. E~j'lo)'er desire to more fully set forth the terms of the emplo)'ment relationship fcr the ber,efit of both tl-,e Employer and Employee. !lOll, THEREFCRE, in cor.si~eration of the foregoing, Employer and Emplc)'ee agree as foUc"s I 1. EHPLOYME!lT. !:m;>lcyer shall hire employee e:1d E:nplu)'ee shall sen'e Emplo)'er in the capacity of Employment Representative. !:mplo)'ee [hsll perform 81 an Employment Representat1\oe for end on behalf of the !:rnplo)'er by Ferforminll certain duties including but not limited to tho~e ~uties enumernted on Exhibit 'A', attached hereto which shsll be called the job description. This job description may be modified from ti:r.e lO time by the Employer so long 81 those modifications relate .to the pe r forme:1ce of tlul1e s as an Emplo)'ment Representa tive. i D1PLOYHElIT AGREDlEIlI 2. !lOURS. Employee shall be required to work on a five day calendar ~eek between tha houra of 't:{'(j-S:OO Eastern Standard Time thr.oush Eaatern Standard Tima at a location to be selected by Emp10j'er. 3. FILES. RECORDS AIm DATA. It is understood and agreed hereto that the names, addresses, files, Job orders, fore,S. records er.d other salient busine69 data of the applicants ond client companies of !:mployer cor,nitute a valuable, asset of Employer snd are tra~e secrets of the Emplo)'er, !n the event tr.at L~ployee's employment relationship ",ith Emplo)'er ,hall be terrr.inated, "r,ether voluntarily or invol\:ntarily, Empleyee agrees tr.s t he or she ....ill keep ccnfi~ential cuch inforrr.ationl that )-,e or she ~'ill not HtoJnFt to Cee,efit persor,ally in any ~'ay from the disclosure of any such infor~ation relating to said clients; that he or she will not sell, give or disclose any ,uch r:ernel, addresses cr other solient business dsta of Employer's clients to any competitor of Employer and, that he or she will not malta ar.y effort, directly or indirectly, on his or her o~-n behalf or on the behalf of any other person or business entity to encourage sny of said clients of Emplo)'er to ,"ithhold their ptrons&e from Emplo)'er. It is further undentood that no files, records, cr cther salient business data of Employer shsll te removed from the offices of Employer ....ithout the express prior consent of E..'T.plo)'er. 4. TMI!lIliG. Srr,plo)'er ,hall be respcnsible fer providing training st its wn expense to tho benefit cf Employee in ordH that r.e or ,he may imrro,'e his or hor skills as on EmploY::lent Represenlstive. T)-,e e~c\Jnt of said training, the location of said training nnd the e>:t.ent cf suc!l troining shall be at the discretion of Employer, S. fACILITIES. Employer shall bo rHponsiblo for providing all facilities necessery for the performance of duties os an Employment Representotivo. 6. PROE.~TlOII. Employer ond Employee aclmowledge that the first ninety (90) days of the Employment Agreement shall constitute ....hat ia kno~-n aa a i 'probationary period'. At the conclusion of said probationary period, Employer shall have the right to retain or discharge Emplo)'ee uith or loIithout cause. Employer further reSeL'ves 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. 7. RESTRICTIVE COVEnANT. Emplo)'ee does hereby expL'essly covenant, promise end agree that during the term of his or her l'mployment and for a period of one (1) )'ear following the terminBt.10:l of his or her emplo)'ment, for any reason whatsoever, he or she shall not, eit~,er ea principal or on behalf of, Ot' in conjunction with, any other person, firm, partnership, company or ccrporation, either as agent, employee. partner, officer. director, consultant or any other capacity, directly or indirectly, within a radius of fifty (50) miles from Employer's principal office do any of the followingl A. Employee shall nut engage in the employ~ent agency or temporary heljl business in competition "ith Emjllo)'er. B. Employee agre~s that he or she shall not solicit or contact any of Employer's clients with whcm he or she dealt during the employment relationship. c. EmplC)'ee agroes that he or she shall not solicit, divert or take a,,'ay putential applicants or client companies of Emplo)'er ~'ithin said fifty (50) mile radius of Employer's prIncipal office for the period of one (1) )'ear from the terminaUc:l of his or her employment relationship. O. CCHPE!/ShTlON. Employer "grees to compensate!:~ployee for the performance of Emplo),nent Reprecentati\oo in the follo",inll o,anner, the Employee shall eDrn3~,oo per week, plul bonus if qualifies. 9. BEIIEFITS. Employer agrees to Fro'Ji,le saladed Emplc)'ee tr,e follo~'ing fringe l:enefits I .~. Vacation is accumulated at a rate of 83% per month or 5 da)'s for e\'ery 6 montha. After 5 )'ears, 3 ~'eeks vacation is earned at 3 rate of 1.25% per nonth. This is calculated from )'our anniversary date to )'Our anniverury date. Vacation tim.. can not be carried ever from year to year, it mUSl be used by your anniversary date \ \. . DlPLOYHEIIT AGREElIEHT B. Employee sholl be entitled t.O the followinll holidayal Chrhtm8B, p.~morial Day, Fourth of July. Labor Day, Thanksllivinll and lI~w Year's Day. . c. Paid sick leave 13 available only for full-time, selaried employees end shall be determined, at the discretion of Emplo)'er . D. Dinner costs for attending various business meetinge ",hen related to tte industry to be paid by Employer unless otherwisa sUted in advence. Seminar costs to be handled in the sema ""anner, CC:\I'~ntion costs will be on e contest or ber,\\s basis, 10. CDNTROL. Err,plo)'Er shall rescrve the right to direct and control the assignment of applicants/temporary employees and client companies to !:mployee and Employee agrees to accapt the responsibility assillned to him by Employer. 11. TERHIHATIOII. !:mplo)'ee may voluntuily termir.! te the employment relationship provided ha or she notify E:nployer tIIO (2) "eel<s in ad,'ence es to the dete of his or her termination. A. Employer may terminete the employmer.t relationship for the followina raasonGI 1. Violation of the code of ethics established by the National ASGociaticn of Persennel Consultents or National Association of Temporary Services. 2. Violation of the licensingle,,'s of the Com:nonl.'ulth of Pe::nsylvcnia and/or fe~eral regulations governing elllplo)'l"ent allendes or temporary help Eervicas. 3. Any continued course of conduct ,,'hich is detri,r.ental to the Employer "hich after notice by Employer to Emplo)'ee ia continced by Emplo)'ee. This conduct csn inc1u~e, but is not limited to, intoxication on the Job, abusi\'e language, irn.1lOral conduct. tardine6S and unexcused absences, refusal to follow Emplo)'er policies or instructions in the performance of his or her duties. 4. Any time durinll the probstionary period without cause. 22. Denied. Plaintiff believes that Hammaker has communicated with present or former clients of Plaintiff. 23. Denied as a legal conclusion. WHBRBFORB. Plaintiff requests the relief sought in the Complaint in Equity. ANSWER TO COUNTERCLAIMS COUNT I 24. Admitted. 25. Admitted. 26. Denied. Ms. Hammaker was not "expected" to perform any duties beyond thoBe Bet forth in her employment agreement. Hammaker worked in a two person off ice. At times, she answered her own phonel at times she emptied her own trash canl and at times she delivered documents to clients. All of these activities were done by Hammaker on her own volition, and were not required by the Plaintiff. 27. Denied as a legal conclusion. 28. Denied aB a legal concluBion. In further response, it is averred that lIammaker waB a salaried employee, as set forth in the employment agreement. 29. Denied. Ms. Hammaker was not "expected" to work in excess of forty hours per week or to work through her lunch hour. lI11mmakll!" B hourB of work were l!stllbl i shed by her employment -2- agreement. If Hammaker did in fact work in excess of forty hours or through her lunch hour, it was on her own volition. 30. Denied. Plaintiff incorporates herein the avermsnts of paragraph 29 of this Answer to Counterclaim. 31. Denied. Plaintiff did not require or "permit" Hammaker to show only eight hours per day on her time cards. 32. Denied. Hammaker was not an hourly employee. In accordance with the employment agl"eement, she received a salary of $360/week. 33. Denied. Hammaker was a salaried employee. If in fact, Hammaker worked in excess of forty hours per week, she did so on her own volition. 34. Denied as a legal conclusion. 35. Denied. Hammaker knows she was a salaried employee, and was entitled only to her salary plus applicable bonuses, all of which have been paid by the Plaintiff. 36. Denied as a legal conclusion. WH!R!FOR!, Plaintiff requests judgment in its favor and against Defendant Hammaker under Count I of her Count.erclaim. ~Q!,J1tT-ll 37. Plaintiff incorporfttes herein by reference the averments of paragraphs 20-36 of its Heply to New Hatter and Answer to Counterclaim. -)- 38. Denied as a legal conclusion. 39. Denied as a legal conclusion. In further response, it is averred that Hammaker was a salaried employee. 40. Denied as a legal conclusion. WHBREFORE, Plaintiff requests judgment in its favor and against Defendant Hammaker under Count II of her Counterclaim. kQ.lW'l' I I I (Incorrectlv Desicrnated as Count II in the Counterclaiml 41. The averments of paragraphs 20-40 of plaintiff's Reply to New Matter and Answer to Counterclaim are incorporated herein by reference. 42. Denied as a legal conclusion. WHBRBFORE, Plaintiff requests judgment in its favor and against Defendant Hammaker under Count III of her Counterclaim. llilli MA'l'TEH TO COUNTEHCLAIMS 43. Plaintiff is a service establishment. 44. Defendant Hammaker was employed under a bona fide individual employment contract. 45. Defendant Hammaker pel'formed her duties under only general supervision and provided service that required special training. -4- CIRTIrICATI or BIRVICS AND NOW, this 14th day of August, 1995, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the u.s. mail, first class, postage prepaid and addressed as follows: Sandra A. Girifalco, Esquire cathleen M. stryker, Esquire STRADLEY, RONaN, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19103-7098 I , / / ('I j,/~ THEO~E A. ADLER, ESQUIRE TO TliE PlAINTIFF: YOU ARE HEflEBY NOTIFIED TO FilE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITIUN TWENTY 1201 DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTEHED AGAINST YOU, ~~HIlJ~ 8~/(1tJ ~O NEY FOR D~ENDAN , ( KEYSTONE PERSONNEL & KEYSTONE TEMPORARY SERVICES, INC., Plaintiff IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-2882 Equity Term LORI J. HAMMAKER and CAPITAL AREA TEMPORARY SERVICES, INC., Defendant DEFENDANTS' RESPONSE TO PLAXNTIFF'S MOTION FOR PRELIMINARY INJUNCTION Defendants, Lori J. Hammaker and Capital Area Temporary Services, Inc., by their attorneys, Stradley, Ronon, Stevens & Young, hereby respond to Plaintiff's Motion for Preliminary Injunction as follows: 1. This allegation is a conclusion of law to which no response is required. 2. It is admitted that Plaintiff has filed a Complaint seeking an injunction against Lori J. Hammaker. It is denied that Defendant Hammaker violated any valid terms of her employmsnt agresment with Plaintiff. 3. No response required. Defendants incorporate herein by reference their Answer, New Matter and Counterclaims, a copy of which is attached as Exhibit "A". 4. This allegation is a conclusion of law to which no response is required. 5. This allegation is a conclusion of law to which no response is required. WHEREFORE, Defendants respectfully request that this Honorable Court deny Plaintiff's Motion for Preliminary Injunction and grant Defendants their attorneys fees and costs and such other and further relief as this Court may deem just. NEW MATTER 6. Plaintiff does not have a likelihood of success on the merits and is not, therefore, entitled to a preliminary injunction. 7. There is no threat of immediate and irreparable harm and, therefore, Plaintiff is not entitled to a preliminary injunction. B. Plaintiff's claims are barred by Plaintiff's own breaches of the Employment Agreement. 9. Plaintiff's claims are barred by a failure of consideration. 10. Plaintiff's claims are barred by Plaintiff's violations of the Fair Labor standards Act, The Minimum Wage Act of 196B and Pennsylvania's Wage Payment and Collection law. -2- 11. Plaintiff comes to this court with unclean hands. 12. 'l'he restr icti vo covenant in tho Employment Agreement ie not reasonable in time or scope and not reasonably necessary to the protection of Plaintiff's business interests. 1J. The restrictive covenant is invalid as a matter of law. 14. The Employment Agreement is invalid. 15. Ms. Hammaker has not solicited, diverted or taken away any employee or client of Plaintiff. 16. Ms. Hammaker has not breached the Employment Agreement. WHEREFORE, Defendants respectfully request judgment in their favor and against Plaintiff Keystone Personnel & Keystone Temporary Services, Inc., together with costs of suit, and any relief the Court deems just and proper. tL S~ dra A. G r co 9hthleen M. tryker, Esquire STRADLEY, RONON, STEVENS & YOUNG 2600 One Commerce Square Philadelphia, PA 19l0J-7098 (215) 564-8000 Attorneys for Defendants, Lori J. Hammaker and capital Area Temporary Services, Inc. 161171 -J- VERIfiCATION LORI J. HAMMAKER hereby states that the facts set forth in Defendants' Response to plaintiff's Motion for preliminary Injunction are true and correct to the best of her knowledge, information and belief. 'I'he undersigned understands t.hat the statements herein are made subject to the penalties of 18 Pa. C.B.A. 54904 relating to unsworn falsification to authorities. ~{.., ~ Nl"",~d/ p,{~ LO I J. AMMAl<ER Datedl Ih11JlIK '7 J' q~' . ~) .1 , , YIlUlICATION 7'.3,'th. ,) BRIAN GAUGHAtj/ ) , / ,~ .' / Yrt t . .'........--. . BRIAN GAUGHAN hereby states that the facts set forth in Defendants' Answer and New Matter to Plaintiff's Complaint, New Matter and counterclaims are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.B.A. 54904 relating to unsworn falsification to authorities. Datedl 167901 .../" J /-1; KIYSTONI PIRSONNIL . KIYSTONI TIMPORARY SIRVICIS, INC., PlaintiU IN THB COURT or COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLVANIA v. NO. 95-2882 IgUITY TBRM LORI J. HAMMAKER and CAPITAL ARBA TEMPORARY SBRVICES, INC., Defendant. PLAINTIFF'S RBPLY TO NBW HATTER CONTAINED IN DBFBNDANTS' RBSPONSB TO PLAINTIFF'S MOTION FOR PRBLIMINARY INJUNCTION 6. Denied as a legal conclusion. 7. Denied as a legal conclusion. To the extent that the averments of paragraph ., of Defendants' New Matter require a response, it is averred that Plaintiff has and will suffer irreparabl e harm if an injunct ion is not granted because of the threat of a continuing violation of the restrictive covenant by Defendant Hammaker and the resulting incalculable damage that may be suffered by Plaintiff. O. Denied as a legal conclusion. 9. Oenied a6 a legal conclusion. 10. Denied as a legal conclusion. . 11. Denied as a legal conclusion. In further response, it is denied that Plaintiff violated any applicable laws or regulations. 12. Denied as a legal conclusion. In further response, the restrictive covenant is reasonably necessary to protect Plaintiff's business interests. 13. Denied as a legal conclusion. 14. Denied as a legal conclusion. 15. Denied. Plaintiff believes, and therefore avers, that Hammaker has or will compete with Plaintiff for clients and business. 16. Denied as a legal conclusion. WHEHEFORE, Plaintiff requests the relief sought in its Motion for Preliminary Injunction. RESPECTFULLY SUBMITTED, IlEAGEH , ADLER', P.C. / Date r '/Yi'/\' a I. ( Y 1_--/-_,,-__ 'flllmD6llE A. ADLEH, ESQUIRE Identification No. 16267 2331 Market street Camp 11111, l'A 17011-4642 ('/1 .,) '16] -1] B ] Attorneys for Plaintiff -2- VBRlrICATIOH I, SHERRY L. SHUMAKER, hereby verify that I am the President of Keystone Personnel & Keystone Temporary Services, Inc., and as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, infor- mation and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904, relating to unsworn falsification to authorities. KEYSTONE PERSONNEL & KEYSTONE TEMPORARY SERVICES, INC. \"u..~ By: ~/;, " II . A'/ '1/ -". . . I lilt". " J. SHERR't;' L. SHUMAKER President Datel >ijl/ I,IS' ~ CBRTIFICATB OF SBRVICB dl1/i MD NOlf, this ~ day of August, 1995, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U. S. mail, first class, postage prepaid and addressed as follows: Sandra A. Girifalco, Esquire Cathleen M. stryker, Esquire STRADLEY, RONaN, STEVENS & YOUNG 2600 One Commerce square Philadelphia, PA 19103-7098 ,;/ /~ THE6DORE A. ADLER, ESQUIRE -3- U"> ~ ~ ~ LI1 0") If'> " ::-) ....:. 'M1K...'.tI""""."'I' ,.f",' ON""'ltOJl~'1"""'lltl'''' :". .. ,. , .1.. ~'11U\DLEY RONON STEVENS OO"OUNG .lhlltl thll' IlllHllH'hl' !'olltl,ln' 11hil.ltldphiJ. I'nll",hani.a II}IH~."t1I)H I'J~ tll"~ ~hl.HI1U 1\1..1\1'111. 1"'I111~\I\..nl" ( lwUl lUlL ~I'" jrl"l'\ .\11111111'\".\11,1\\ Allihiunl Olllu', \'lnd.uut ~('" Jrr"q (iruulll,I'qlpn lilmln.alll, IJt'!o,;ulIulIlllllmltlh, I'A !\.IIHlrJ ,\ Ciirililllll t21~I"ht.HlIhl August 29, 1995 Prothonotary Cumberland county Courthouse One Courthouse Square Carlisle, PA 17013 Re: Keystone Personnel , Keystone Temporary services, Inc. v. Lori J. Hammaker and capital Area Temcorarv services. Inc.. No. 95-2882 Dear Sir/Madam: I enclose herewith for filing an original and one copy of Defendants' Brief in opposition to Plaintiff's Motion for Preliminary Injunction, a copy of which was forwarded directly to Judge aler on August 24, 1995 prior to his hearing the motion on August 28, 1995. Please time-stamp the additional copy and return it in the self-addressed, stamped envelope provided for your convenience. Thank you for your courtesy and attention in this regard. Very truly yours, ~ ( {, /tu-.Lu.. J~:du~ Sandra'A. Girifa<1.co (J SAG/smw Enclosure cc: Theodore A. Adler, Esq. 112401.1 Ij1--.!J 0<J2 f4..J 1 Lt J./\ JLtJ.. . I -rJ)J I J) D JI"a J !it'd According to thl! Agrl!l!ml!nt, Mil. lIaml1\akl!l" wall hi n.!d to work as an Employment Representativu 5 daYll pur wuuk, 0 hours per day. c. Employee agreee that he 01 ehe shall not solicit, divert or take away potential BpplicftlllB or client compa.nies of Employel wllhln anti fifty 150) mlle IOdins of Employer'e principal oftice for the period of uns (1) yea I' from the termination of hiu 01" her Employment ndatlollBhip. She was paid $360 pur wuuk. lIowuvul", Bhortly aftul" the sta,-t of her employment, Keystone I"equlrud Ms. lIammakur to upend a significant portion of hur tlmu performing thu dutius of a cluilning person, delivery uervice, telemarkutur and receptionist, and working well beyond hur schudulud time, for which she was not compensated. On March 31, 1995, after lusu than ten months at Keystone, Ms. Hammaker voluntarily terminatud her employment. On May I, 1995, Ms. lIammaker began employment with capital as an Employment coordinator. On May 26, 1995, Kuystone filed a Complaint and Motion for a Preliminary Injunction ueeking to enjoin Ms. lIammaker's employment with Capital based upon the "Restrictive Covenant" found in the Agreement. Keyutone's motion must be denied because (1) Keystone cannot Illeet tho threshold requirements for issuance of a preliminary injunction and (2) Keystone's claims, which sound in equity, are barred by the clean hands doctrine. B. Employee agreee that he or ehe shall not eolfell or contact any of Employer'S clients with whom he 01 she d..lt dUl,lng the employmsnt relationship, -2- II. ARGUMBNT A. Keystone can not meet the threshold requirements tor a Preliminary In1unotion A preliminary injunction is an extraordinary remedy which should only be granted if the party seeking the injunction (1) will suffer immediate and irreparable injury if the injunction is denied and (2) has a clear right to the relief sought. William v. Children's Hospital of l'ittsburqh, 505 Pa. 263, 479 A.2d 452 (1984); Soia v. Factorvville Sportsmen's Club, 361 Pa. Super. 473, 552 A.2d 1129 (1987). A preliminary injunction should never issue unless there will be greater harm done by refusing it than by granting it. /losP. Ass'n v. Com. Dept. of PUblic Welfare, 495 Pa. 225, 433 A.2d 450 (1981). As demonstrated below, Keystone's request for a preliminary injunction fails on all three counts. Most significantly, Keystone has no evidence of harm. 1. Keystone will not suffer any injury if the iniunction is denied OUt" ing the four months Ms. Hammaker has been employed with Capital, Keystone has not been injured in the slightest. Keystone's inability to prove immediate and irreparable injury is fatal to its request for a preliminary injunction. Hollillli Protectlye Services Co. v. shatfQr, 3B3 Pa. Super. 598, 557 A.2d 413 (1989). In HQ~ljll~, two tormer employees of Hollins Protective Services left its employ to work for a direct competitor. Both employoes signed restrictive covenants -3- prohibiting them from engaging in employment in competition with Rollins for a period of two years. Although the trial court found the employment agreements valid, the court denied Rollins' motion for preliminary injunction because Hollins failed to establish any harm at all resulting frem the employees' violation of the covenants not to compete. Id. at 601/557 A.2d at 413. The superior Court affirmed the trial court's decision noting that since Hollins' former employees had not stolen or solicited any of Rollins' customers or taken any customer lists, Rollins "was threatened with no greater harm to 'customer relationships' from [its former employees], than from any other similarly situated employee not formerly employed by [Hollins]." lsL. at 602, 557 A.2d at 414. Hased upon similar facts, the Superior Court affirmed the denial of a preliminal-y injunction in lIarsco Corp. v. Klein, 395 Pa. Super. 212, 576 A.2d 1118 (1990). In lIarsco, a 19 year employee named Klein terminated his employment with liars co and began working for a competitor. '1'he court denied Jlarsco's motion for a preliminary injunction to enforce a restrictive covenant because "there was no likelihood of immediate and irreparable harm to lIarsco by l-efusing the injunction." Id. at 21'/, 576 A.2d at 1121. The Superior Court affirmed noting that when Klein l"oBigne>d his employment he was not dealing directly with clientll and that "in any event the customers in lllarsco'll industry] would be generally known to all of the firms in tho llame bus i neSB. . ." 19->. "4- Hammaker, it ohould not be enforced, UQQ Mgrqan'O 1I0me Equipment Corp. v. Martucci, 390 I'a. 6111, IJ6 A.2d 1130 (1957) (Court refused to enforce covenant prohibiting former employee from working for competitor within JOO mile radius for one year on basis that covenant posed an undue hardBhlp on employee but was not reasonably necessary to protect the employer). b. 'I'he EmpIQYment-Ilgreelllent is Unenforceable Keystone can not now enforce the Agreement because it materially breached the Agreement during Ms. Hammaker's employment. ott v. Buehler Lumber co., 373 1'a. Super. 515, 541 A.2d 1143 (1900) (party who materially breaches contract can not complain of breach of contract by other party); United States v. Curtis T. Dedwell & Sons. Inc., 506 F. Supp. 1324 (E.D.Pa. 1981) (same). Paragraph 2 of the Employment Agreement states that the "Employee shall be required to work on a five day calendar week between the hours of 8:00 - 5:00." See, Exhibit "A" to Keystone's Complaint at ~ 2. In actuality, Ms. Hammaker was routinely required to work through lunch, in the evenings, and on weekends and to be on call without being compensated. Furthermore, Paragraph J of the Agreement states that Ms. Hammaker was hired as an "Employment Representative" and her job description could only be modified if the modifications related to the performance of duties as an Employment Representative. Nonetheless, ao discussed above, Keystone did not employ Mo. lIammilker solely as an Employment Representative as promised in the Agreement, but rather, it -7- required her perform a variety of tasks tot~lly unrel~ted to the work of an Employment Representative. Under Pennsylvania law, Keystone's material breaches of the Agreement void any obligation Ms. Hammaker may have had under the Agreement. n. Kevstone Comes to This Court ~it~clean Han~s Keystone may not invoke the equitable powers of this Court because it comes to this Court with unclean hands. As has been stated by the Supreme Court of Pennsylvania for over a quarter century, "He who seeks equity must do equity." Ma~er v. Sarqent Electric co., 407 Pa. 169, 100 A.2d 63 (1962); Spraque v. CaseY, 520 Pa. 30, 550 A.2d 104 (190B). The clean hands doctrine is applicable "where a party seeking affirmative relief is guilty of fraud, unconscionable conduct or bad faith directly related to a matter at issue which injures the other party and affects the balance of the equities between the litigants." ~guibank v. Adle. Inc., 407 Pa. super. 553, 595 A.2d 1204 (1991). As discussed in detail above, Keystone knowingly breached its Agreement with Ms. Ifammaker from its very inception. Ms. Hammaker never acted solely as an Employment Representative for Keystone. Further, Ms. Hammaker w~s regularly required to work evenings, weekends, through lunch and was required to be on call. Keystone never paid Ms. lI~mmaker for ovel.time even though it was required to do so under the Fair Labor standat'ds Act, 29 ll.S.C. S 201 et Beq., l'el1llByJvani~'s Minimum W~gt.! Act 01 1968, 43 I'.S. S 333.101 et seq., and The Wage Payment and Collection Law, 43 I'.S. 260.1 at saq. -0- Keystonc's i ntont i 01111 I lnil tOI" i iI I bl-caches of the Agreement and violations of employec protection laws demonstrate bad faith and unconscionnble conduct directly rclated to the matter at issue betweon tho partios (1.0., their employment relationship) and the equities in this litigation. Under the clean hands doctrine, Keystone's conduct precludes the Court from entering the pl-eliminary injunction which Keystone seeks. III. CONCLUSION For the foregoing reasons, Defendants Capital Temporary Serviccs, Inc. and Lori Hammaker respectfully request that this Court deny Keystone's Motion for Preliminary Injunction. 111m Attorneys for Defendants, Lori J. Hammaker and Capital Area Temporary Services, Inc. -9-