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HomeMy WebLinkAbout95-06599 THE OFFICE WORKS INC. . . 601 Gibson Blvd., . . Harrisburg, PA 17105, . . plaintiff . . vs. . . HOWARD WAGENHEIM . No. . 5254 Strathmore Drive, Mechanicsburg, PA 17055, and . . BOISE CASCADE OFFICE . . PRODUCTS, INC. 3001 Frost Road, . . Bristol, PA 19007, Defendants . . , 1995 - &599 H ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 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 defense or objections to the claims as set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. \,,,... . YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. By Court Administrator Court Administrator's Office 4th Floor Cumberland County Courthouse Carlisle, PA 17013 APPEL & YOST lam J. Cassidy, . Attorney 1.0. No. 317 4 Attorneys for The Office Works, Inc. 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 2 , i ! \ , , :\ I 'I I 'if~'~",'::';i ,;: . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE OFFICE WORKS INC. 601 Gibson Blvd., Harrisburg, PA 17105, plaintiff I . . . . . vs. HOWARD WAGENHEIM 5254 strathmore Drive, Mechanicsburg, PA 17055, and BOISE CASCADE OFFICE PRODUCTS, INC. 3001 Frost Road, Bristol, PA 19007, Defendants No. t -''''', :J.MS ~ I.u-> . . COMPLAINT 1. plaintiff, The Office Works, Inc. ("Office Works"), is a corporation authorized to do business in pennsylvania with a place of business at 601 Gibson Road, Harrisburg, pennsylvania 17105. Office Works is engaged in the business of selling, installing and servicing office equipment, office machines, office supplies office furniture and furnishings. 2. By merger and as the surviving corporation The Office works, Inc. is the successor in interest to the rights and obligations of Reliable Office products, Inc.("Reliable"). ., 2. Defendant Howard Wagenheim ("Wagenheim") is an individual residing at 5254 Strathmore Drive, Mechanicsburg, pennsylvania 17055. 3. Defendant Boise Cascade Office products, Inc. ("Boise") is believed to be a Delaware corporation with its principal office located at 3001 Frost Road, Bristol, pennsylvania 19007. 4. On or about September 11, 1990, wagenheim was hired by Reliable (Office Works' predecessor in interest), as a sales representative. At the time of hiring Wagenheim executed an Employment Agreement (the "Agreement"). 5. A true and correct copy of the Agreement is attached as Exhibit "A" and incorporated by reference. 6. Among other things, the Agreement: required Wagenheim to promote the business and goodwill of Reliable (paragraphs 1 and 4) in the performance of his responsibilities as an employee of Reliable and 4; prohibited wagenheim from divulging confidential or proprietary information during the term of his employment or any time thereafter: (paragraph 5); and prohibited him, whether directly or indirectly, from representing any business which competes against Reliable as described in paragraph 1 of this Complaint within fifty (50) miles of Harrisburg for a period of eighteen (18) months after termination of employment (paragraph 6.) 2 7. Wagenheim was continuously employed by Reliable and/or Office Works from September 11, 1990 until October, 1995, when his employment was terminated. During such time Wagenheim was employed as a sales representative. 8. During his employment tenure, wagenheim had access to confidential information and trade secrets of Reliable/Office Works including, but not limited to their proprietary methods, costs and prices of its products, and strategies for seeking, soliciting and maintaining its business. In addition, Reliable and Office Works permitted and enabled wagenheim to develop relationships with their customers and suppliers. 9. Shortly after his termination of employment Wagenheim began to sell office supplies, office furniture, office equipment and office furnishings on behalf of Boise within fifty (50) miles of Office Works' place of business in Harrisburg. 10. Upon information and belief, wagenheim has solicited current customers of Office Works (who were customers of Reliable prior to the merger) on behalf of Boise, including but not limited to, The PMA Group, Inc., MCCoy Electronic's Inc., Gannet Fleming, Inc., Ahlstrom Filtration, Inc., The Computer Learning Network and KHA/Keystone Health Plan Inc. These entities are customers of Reliable and/or Office Works who were serviced by wagenheim during his employment tenure with Reliable and lor Office Works. __of 3 .~.. 11. On October 23, 1995, Office Works, by and throuqh its counsel, sent a letter to Waqenheim remindinq Waqenheim of his obliqations under the Aqreement and placinq him on notice that Office Works' policy was to enforce the terms of the Aqreement. 12. A true and correct copy of the October 23, 1995 letter is attached as Exhibit "B" and incorporated by reference. 13. On October 23, 1995, Office works sent a letter to Boise informinq Boise of Waqenheim's obliqations under the Aqreement and placinq them on notice that Office Works' policy was to enforce the terms of the Agreement. 14. A true and correct copy of the october 23, 1995 letter is attached as Exhibit "c" and incorporated by reference. 15. Notwithstandinq the letters, it is believed that Waqenheim has been soliciting, and continues to solicit, customers of Office Works and is being encouraged to do so by Boise. COUNT I - WAGENHEIM Breach of Contract - Noncompetition 16. Office Works incorporates the averments contained in paragraphs 1 through 15 by reference as if set forth verbatim. 17. Due to the specialized nature of the business enqaqed in by Office Works and the relationships that its sales representatives develop with prospective and actual customers, paragraph 6 of the Agreement provided as follows: 4 6. Employee agrees that for a period of eighteen months after the termination of employment, FOR ANY REASON, HE WILL NOT enter into, BE EMPLOYED BY OR IN ANY MANNER BE ASSOCIATED WITH an office equipment, office machines, office supply, office furniture, or office furnishings business within 50-mile radius of Harrisburg. IN ADDITION TO THE FOREGOING PROHIBITIONS, THE EMPLOYEE AGREES THAT for a period and within such radius, HE WILL NOT engage in any other BUSINESS activity WHICH MAY BE in direct competition with the BUSINESS OF THE Company. The office furnishings business shall be deemed to include BUT NOT BE LIMITED TO, the sale of FURNITURE, draperies, carpeting, or any other items that ARE AT ANY TIME during the term OF THIS AGREEMENT, INCLUDING PARAGRAPHS 5 AND 6, sold by the company and shall also include the CONSULTATION, planning, designing, or specifying of office or commercial furnishings or decor. lB. After the termination of his employment and without the consent of Office WorkS, Wagenheim violated and materially breached the Agreement by directly and indirectly representing a company competing with Office Works within fifty (50) miles of Office Works' place of business in Harrisburg. Among other things, Wagenheim solicited Office Works customer's in an effort to induce them to sever their relationship with Office Works and purchase competitive products and services from Boise. 5 19. Office Works believes and therefore avers that unless and until restrained by this court, Wagenheim will continue to breach and violate paragraph 6 of the Agreement. 20. As a direct, proximate and foreseeable result of Wagenheim's breach of the Agreement, Office Works has suffered irreparable harm, injury and damage and will continue to suffer immediate and irreparable harm, injury and damages for which it has no plain, adequate and complete remedy at law, unless this Court preliminarily enjoins Wagenheim until trial and permanently enjoins them thereafter for a period of eighteen (18) months following entry of the preliminary injunction, from directly or indirectly, alone or in association with any other person, organization or corporation competing with Office Works and contacting, soliciting or dealing with any customer of Office Works within fifty (50) miles of Office Works' Harrisburg business location. WHEREFORE, Office Works requests that the Court enter judgment in its favor and against wagenheim as follows: (a) Enter an Order preliminarily until trial and permanently thereafter for a period of eighteen (18) months following entry of the preliminary injunction, restraining and enjoining Wagenheim from, directly or indirectly, alone or in association with any other person, organization or corporation, from competing with Office Works within fifty (50) miles of Office Works' Harrisburg business location or otherwise 6 solicitinq or in any other manner contactinq or dealinq with any customer of Office Works within fifty (50) miles of its Harrisburq business location; (b) Direct Wagenheim to account for and to pay to Office Works an amount equal to all the receipts, commissions, salary, profits or other income equal to all the receipts, commissions, salary, profits or other income earned by Wagenheim as a result of his competition with Office Works and his solicitation of Office Works' customers; (c) Award Office Works all compensatory and consequential damages resulting from Wagenheim's competition with Office Works and his solicitation of Office Works' customers; (d) Award Office Works its costs and expenses and such other relief as the Court may deem just and proper; and (e) Retain jurisdiction of this matter for a period of eiqhteen (18) months following entry of the preliminary injunction to determine whether this Court's Orders are obeyed. COUNT II - WAGENHEIM Breach of Contract and Breach of Fiduciary Obliqations and Unfair competition 21. Office Works incorporates the averments contained in paraqraphs 1 through 20 by reference as if fully set forth verbatim. 22. paragraph 5 of the Agreement between Reliable and Wagenheim provides as follows: 7 I i I I , , ! I I ! 5. The employee recognizes and acknowledges that he will have access to certain confidential information of the company and that such information constitutes valuable, special, and unique property of the Company. Except in connection with the proper performance of the duties assigned to him. Employee shall not, during his employment or AT ANY TIME thereafter and irrespective of the time, manner or cause of any termination of employment, directly or indirectly disclose OR PROVIDE to ANY PERSON, BUSINESS, PARTNERSHIP OR CORPORATION information or knowledge which he has acquired during his employment with the Company. THE INFORMATION REFERRED TO IN THIS PARAGRAPH SHALL INCLUDE, But not BE limited to, names of suppliers and customers, BUSINESS Form, ordering sheets, trademarks, trade secrets, bulletins, catalogues, and/or other written material published by the company or obtained from the Company. In the event of a breach or threatened breach by the Employee of the provisions of this paragraph, the Company shall be entitled to an injunction restraining the Employee from disclosing ANY such information or knowledge. IN ADDITION TO THE FOREGOING, the Company SHALL BE ENTITLED TO PURSUE any other EQUITABLE OR LEGAL remedies available including MONETARY damages. 23. As a former employee of Reliable and Office Works, Wagenheim owes a duty of loyalty to Office Works. 8 ! .1~<IIt .,; 1 t 24. Wagenheim breached his duty to Office Works, breached the Employment Agreement and engaged in unfair competition by, among other things, misappropriating, using and disclosing trade secrets and other confidential and proprietary information of Office Works. 25. As a direct, proximate and foreseeable result of Wagenheim's breach of his fiduciary obligations to Office Works and breach of the Agreement, Office Works has been and will continue to be irreparably damaged unless otherwise enjoined by this Court. WHEREFORE, Office Works requests that the court enter judgment in its favor and against Wagenheim as follows: (a) Enjoin Wagenheim from misappropriating, using or disclosing Office Works' trade secrets or other confidential or proprietary information and unfairly competing with Office Works in breach of his fiduciary obligation and Employment Agreements; (b) Award Office Works all compensatory and consequential damages resulting from Wagenheim's breach of his fiduciary obligations and Employment Agreements; (c) Award Office Works its costs and expenses and such other and further relief as this Court deems just and proper. 9 COURT III - WAGENHEIM AND BOISE Intentional Interference with Existinq and prospective Contractual Relations 26. Office Works incorporates the averments contained in paragraphs 1 through 25 by reference as if fully set forth verbatim. 27. At the time of Wagenheim's termination of employment, Office Works enjoyed existing and prospective contractual relationships with its customers. 28. Wagenheim was familiar with the terms and conditions of Office works' existing and prospective contractual relationships. 29. Prior to his termination, it is believed that Boise solicited Wagenheim to accept employment with Boise for the specific purpose of having Wagenheim solicit customers of Office Works which he serviced while employed by Office Works. 30. Boise solicited, hired and encouraged Wagenheim to solicit customers of Office Works notwithstanding Boise's knowledge of the Employment Agreement Wagenheim has with Office Works and apparently inducing Wagenheim to breach the employment agreement. 31. Following his termination of employment, Wagenheim, on behalf of Boise, without privilege or justification, engaged in the solicitation of Office Works' customers within fifty (50) miles of its place of business in Harrisburg, Pennsylvania. 10 32. On October 23, 1995, Office Works informed Boise by letter, a copy of which is attached as Exhibit .C,. that Boise was encouraging and allowing Wagenheim to violate the terms of the Agreement, and interfering with Office Works' longstanding relationships with its customers. 33. Office Works believes and therefore avers that Wagenheim and Boise, without justification or excuse, improperly and maliciously interfered with Office Works' contractual relationships with its customers in violation of paragraph 6 of the Agreement. 34. Paragraph 6 states, in part, the following: 6. Employee agrees that for a period of eighteen months after the termination of employment, FOR ANY REASON, HE WILL NOT enter into, BE EMPLOYED BY OR IN ANY MANNER BE ASSOCIATED WITH an office equipment, office machines, office supply, office furniture, or office furnishings business within 50-mile radius of Harrisburg. IN ADDITION TO THE FOREGOING PROHIBITIONS, THE EMPLOYEE AGREES THAT for a period and within such radius, HE WILL NOT engage in any other BUSINESS activity WHICH MAY BE in direct competition with the BUSINESS OF THE Company. The office furnishings business shall be deemed to include BUT NOT BE LIMITED TO, the sale of FURNITURE, draperies, carpeting, or any other items that ARE AT ANY TIME during the term OF THIS AGREEMENT, INCLUDING PARAGRAPHS 5 AND 6, sold by the Company 11 and shall also include the CONSULTATION, planning, designing, or specifying of office or commercial furnishings or decor. 35. Wagenheim's and Boise's acts were not privileged and were carried out for the improper purpose of obtaining financial and other gains at the expense of Office Works. 36. As a direct, proximate and foreseeable result of the defendants' unlawful acts, Office Works has been harmed, injured and damaged in an amount in excess of $20,000.00 WHEREFORE, Office Works requests that this Court enter judgment in its favor and against the defendants as follows: (a) Award Office Works compensatory damages in an amount equal to the profits earned by the defendants from the customers, trade or business improperly obtained by or through Wagenheim; (b) Award Office Works its consequential damages resulting from the aforesaid conduct; (c) Award Office Works exemplary or punitive damages; and (d) Award Office Works its costs and expenses and such other relief as this Court deems just and proper. 12 COUNT IV - WAGENHEIM AND BOISE For An Accountinq 37. Office Works incorporates the averments contained in paragraph 1 through 36 by reference as if fully set forth verbatim. 38. Office Works believes and therefore avers that there is presently due and owing Office Works from the defendants' revenues and profits an amount in excess of $20,000.00, the exact amount being unknown to Office Works, as the defendants have never rendered Office Works any accounting of the revenues, profits or other income they received as a result of the breach of the Agreements and the interference with contractual relations as describe more fully above. WHEREFORE, Office Works requests that this Court enter judgment in its favor and against the defendants as follows: (a) Direct the defendants to account fully to Office Works for all revenues, prOfits, or other income earned by them as a result of Wagenheim's violation and breach of the Agreement and Wagenheim's and Boise's interference with contractual relations, inClUding revenues, prOfits, or income earned from the customers, trade or business of Office Works that were directly or indirectly accepted by Wagenheim as an individual or as an agent, principal, consultant, employee, sales 13 BY~~~r. Attorney I.D. No. 3f724 Matthew G. Guntharp Attorney I.D. No. 43770 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 Attorneys for Plaintiff The Office Works, Inc. representative or in any other capacity and from all customers, trade or business of Office Works referred to Wagenheim by any officer, director, partner, employee, agent or otherwise thereof; (b) Award Office Works all such revenues, profits and other income shown to be due to Office Works by such accounting; and (c) Award Office Works its costs and expenses and such other relief as this Court deems just and proper. APPEL , YOST 14 VERIFICATION I, CARLTON L. MILLER, verify that I am president of The Office Works, Inc., the plaintiff in the within action; that the attached Complaint is based upon facts of which I have personal knowledge or information furnished to me by counsel; that the language of the document is that of counsel and not my own; and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. 54904 re falsification to authorities. Carlton L. Miller 15 ..;~,-, "" ""'i",.,. "",-",-' "".,....,.,,>-...--- IlU'II""-UQIol. __.... '0" "",.(',,_0 (!) '. '~...', ~..' OCT-~~ '~I~~5~RBf '7at~JFICE'PRODUCTi 'TO 3'36EA\2& p.. ~ AGREtME~T I I I I THIS AGREEHlNT, IIIIde thh //~ dlY:Or ~v'-JC" l'''~. b.tw.,n RE~IA8~! O"ICE PRODUCT~. INC., . Plnnlylvln1a cor- po...tion, h.relnafter called .conrpan,y~ and ~/o' IIfl.J"IIhoM , h,"elnafte" called "Employee." -- '. , I' The partie. hereto. Intending tolbe leg.llr bound hereby, .gr.. e. follow. : I I ' 1. The COlllpeny hereby employs ~mploye. 1$ I ~cs .&""'~""""~ct. I' and Employee Will per'or.~n connection with such e~pl0y..nt such duti.. 15 II" Ilslgn,d to h~m ~om' time to tlme by the COllplny. I 2.' It I. ac~nowledged that Company and ~lIIployee have agreed upon I an Inltlal compensation for E~loye. ~or p.rfo~mance of his work WHICH SHAL~ BE DEEMED AS VA~UABLE CONSIDERhTION FOR 1HI5 AGREEMENT. DurIng the te"~ of the employment. Employ.e Jhall con~inue, to be compen~ited by such ,,"ry, WIIges. fees. COllll1lfsllo/l", or othe~ benefits u are from tIme to time agreed upon by Compan,y a1Id EmplOY,I. 3. The term of employment sha1!1 Gonmenc* on .s.P'kIll!J~,. II. , I '" I'~~~ .nd contlnue Indefl~ltl'y 'Wlfh lach plrty havlng the right to terminate the employment upon WRITTEN,notlce to the other. AT THE'TIHE OF TERMINATION OF THIS AGREEMENT, EMPLOYEE SHALL BE ELIGIBLE TO " I I RECEIVE ONLY SUCH WAGES OR COMMISSIONS WHICH HAVE BEEN EARNED AS OF THAT , . , DATE. . . _." -, OCT 20 . 95 11151 TI-E OFFICE laI<!r- ' OCT-ae-l995 111 47 FRa1 RELIAELE lFFICE PRODUCTS TO ~426 '-. 4. Employee agrees to devote hIs best efforts and his antire tIme to the business of the Compeny ,nd the performen~e of hIe duties, and h, shall not, directly or Indirectly, INDIVIDUALLY or as , member of . partnerShip, or a. an Officer. director, stockholder or employee of any , other BUSINESS, corporation or partnership, be engaged in, or concerned with, any other BUSINESS pursuit. what.oever during the term of thls . Agreement. IN ADDITION TO THE FOREGOING, EMP~OYEE shall NOT do anythIng that WOUld r.flect advers.ly upon THE BUSINESS, REPUTATION OR IMAGE OF the Company. . ' .-... 5. The employee recognizes and acknowledges that he will have acc,s. to certain confidential informatIon of the Compony and that such information consttutes valuable, specl.l, and unIque property of the Comp,ny, Except in connectIon with the proper performance of the duties asslgn.d to him. Employ.e shalt not, during his employment or AT ANY TIME thereafter and Irrespective of the time, manner or cause of a~ terminatIon of employment, directly or IndIrectly diSClose OR PROVIDE to ANY PERSON. 8USINESS. PARTNERSHIP OR CORPORATION In'ormation or knowledge which he has acquired during his employment with the Company. THE INFORMATION REFERRED TO IN THIS PARAGRAPH SHAL~ INCLUDE, But not BE limited to. names of supplier. and customers, 8USiNESS Form, ordering sheets, trademarks, trade secrets. bull.tins. catalogues, and/or other written material publ~shed by the Company or obtained from the Compa~. In the event, of a breach or threat.ned breach by the Employee of the provisions of thIs paragraph. the Company shall be entitled to an fnJunction restraining the Employee from dIsclosing ANY such information " . e - p..~ , I . ' I. ; , 1 OCT-~1~ ''t1,W~~ Of"M1~"'lce PROMTS TO JM8426 p,.~ Of knowledge. IN AD~ITION TO THE FOREGOING, the company SHA~~ BE ENTiTlED' TO PURSUE Iny other EQUITABLE OR LEGA~ remedtel avatlable Includtng MONETARY damages. , I 6. Employe. agrees that for ,I perlod of etghteen months Ifter ~h. , I tenttnatlon of employment. FOR ANY REASON, HE, WILL NOT ent.r tnto, BEl EMP~OYED BY OR IN ANY HAHNER BE ASSOCIATED WITH an office equlpment, I offIce machInes, offlc, supply. office furnlture, o~ office furnllhin~. buslne.s within GO-mile rldlus of HarriSburg. IN ADDITION TO THE ' FOREGOING PROHIBITIONS. THE EMPLOYEE AGREES THAT for luch period and i withtn such radius. HE Will NOT engage tn Iny other BUSINESS acttvity, WHICH MAY BE ln dtrect competltlon wIth the BUSINESS OF THE COGplny. i The offtce furntshlngs bustness shall be deemed to Include BUT NOT B~ LIMITED TO. the 581. of FURNITURE. draperle., carpeting, or Iny other, i ltems that ARE AT ANY TIME durlng the t.rm OF THIS AGREEMENT. INClUO~NG PARAGRAPHS 5 ANO 6, sold by the Company and shall .lso lnclude the I CONSU~TATION. planning. deslgntng, or spaclfylng of office or commerclal , I furnlshtngs or decor. t , 7. In the event legal actlon Is taken to enforce thl provisiO?1 I of the preceding paragraph, and a court find that Employee has VIolated h ' I t e ttr~s of sald paragraph. the eighteen month period Ihall be .xte~ded by a period 0' tIme equivalent to the period of vlolatlon. THE PARTiES AGREE THAT In the Ivent the provisions 0' Paragraph 6 should ever bel deemed t~ exceed the time. geographic, or occupation.l 11mltatlons p~r-, .. ..... mltted by thd appllcab1e laws, such provfslons shall be reformld to ;the mlximum time, georgraphlc, or occupational limttatfons permttted by the I appllcable lawI. I ! I I - 3 - -~ 20 '95 11152 TIE: OfTICE: w:lRl<,r . ~1995 11148 /l1lO1 RELIA8l..EOF/lICE f'llOI)UCTS TO J9SS426 ".5/6 ; ': B. Mothtng heretn shall b. deeMed to prev,nt the company from illllltdtat.ly termlnltlnll the elllployllltnt of Employee upon breach or THREATENED BREACH of thl. Agre~nt. t. The fanure of Comp.ny .t .ny time to reqUire per,orrDInceby Employee of. any pravtston OF THIS AGREEMENT Shill NOT if'ect the right' 0' Company hereafter to ,nforce th, same, nor shall the watv,r by COlIlJIany of .ny breach 0' .ny proviSion 01' THIS AGR~!MENT be CONSIDERED to be a waiver of .ny succeedlnll'bre.ch of such provtstons of the provi~ sion Itself..' 10. If Iny provision of this:Agre,ment. or the application th,reOf, shall be h,'d LEGALLY invalid or unenforceable, th, rematnder of the agreement shall not b. affected thereby and each'provtllon shall be valid and b, enforced to the fullest extent permItted by llw. Furthermore. IICW provision cont.lned in this agreement is a separate and Independent convenant and not dependent on any other provtsion unless expressly 10 provided. 11. Employee acknowledges recefpt of . copy 0' this agreement. Thfs agreement contafns the complete understendfng and agreement 0' the parties hereto wfth re.pect to the subject matter hereof, .nd supersedel .nd extinguishes any and all prior n,gotfatlons" understandfngs, end. agreements, WHETHER WRITTEN OR ORAL. wIth respect to SlId subject . matter, 'ANY AND Al~ MODIFICATIONS TO THE PROVISIONS OF THIS AGREEMENT. , . SHALL BE IN WRITING. AND WITH TIlE':ElCCEPTlON OF ATERHINATlOIl U:rTER AS CONTEHPlAttO IN PARAGRAPH 3, BE SIGNEDiBT BOTH PARTIES. i ! , I . 4 . . . " OCT 20 '95 11'53 nE OI'F'ICE w:!RK:> o.:T.;>>-199:5 11'48 FR01 REl-IRa.a u-FICE PRQW:'T6 TO ~26 (S.€}6 IN WITNESS WHIQEOF, the p,rtie, hereto have hereunto "~t their hands end sea" the dlY end y.,r first aboye written. RE~I~~E oPFlct PRODUCTS, INC. 'Y' ~vM~ TWe: r;.,.,~e-. ". -p, WlTHES$1 , -4zfd/.'n A 4 j &tz;~~J r r 2/'l.7/89 560.101/.105 - 5 - ......,..c,",..~ .' TOTA. P.1il6 ,; " , fU,"-"..II_ ...m... 10" IIICl'ClID (i) , \.,. T. "oeuITS AP'f1CL.' HAJIlI"'" . ",oaT JAMES W. APPel. JOHN L. SAMPSON MENCTH H. HOWAAD WI....I.lAM A, wte.TLY WlUJAM J, C.HOY..... META ". .u&. "'.TT"W O. OUHTHAJUt Pl!:TPI M, ICHANNAuu. ~A Q. VAN.IK ELAN G_ lJOCll.HIC O.VD W. ~IKY LAW OFl'lCE:5 APPEL & YOST THlATV-THREI: NORTH DUKE STREET LANCASTIER, PENNSVLVANIA 17110a t(Q)(Plf C7t7JIMOAt PAX C7I7J zee.1711 ~TI lit, .upa, -1I.N.IN11 """"" w...V.....n......_ MUUaL L. H.II&I.I1...I.'"., cwra AT NlW HClLLAHD, P. 141 !lAIT MAIN STRUT I71n.M-otIU C>>?1a AT IT"AUUflla. PA N !lAIT ...... ITMaT I1In "'.1111 0f?ICI: AT ou.....vvu.a, PA lOt EAIT ITATlllTI'UT eJlnf....lfl CWP1CI:.T EPHftATA. PA tll EAn M.IN ITI'UT IfInfJl.ltOol October 23, 1995 01' CllUNKL PAUL ~. McMlNMY J MAJItUN iHRCfCflI Howard Wagenheim 5254 Strathmore Drive Mechanicsburg, PA 17055 Dear Mr. Wagenheim: Our firm represents Reliable Office Products ("Reliable") and The Office Works, with which Reliable is now affiliated. It has come to our attention that you have taken a job with Boise Cascade Office Products and are soliciting customers of Reliable on its behalf. That is in direct violation of your employment agreement with Reliable in which, among other things, you agreed not to compete with Reliable or to accept employment with a competitor of Reliable for a period of eighteen months after termination of your employment. In addition you agreed not to divulge any information that Reliable considers to be confidential, including customer information. We hereby demand that you immediately terminate your employment with Boise Cascade Office Products, that you refrain from contacting any person who was or is a customer of Reliable, and that you fully comply with all your other obligations under your employment agreement. If your fail to do so, we will take prompt legal action against you. very truly yours, 111t!;1$.tw 1/ ~~thew G. Guntharp MGG/dmh 7834 30 cc: Carlton L. Miller Christopher Rocke William J. Cassidy, Esq. Al.l.".".UQIol ...... toll 1ltC;fl'.41O (i) ~ ... cc (Q)-~1f T. IItOMRTI APPEL. . HAIltIltV a. VOlT JAMUi W. APPEL .ICH'II L. SAMPION MENNItTH H. HOW...lltD WLUA'" lit. W!CATL V WLUAM J, CAIIIDV.... META lit. AUL MATTHEW Q. QUHTH....P NTU. M. ICHANNAUER ..uJA G, VANASH ELAICO.1JOClLHI( DAVID W. MVtSMV LAW O~1'1CES APPEL. & VOST THlRTV -THREE NORTH DUKE 5TRErr LANCASTER. PENNSYLVANIA t TllOZ 1It00000"TS lit. APPEL .11'1.1.''''' fIlALPH w. Eav, ......11..1.111III Jr.C."MJ. L. HAIKl..lIMI...711 Cf'f'tCI: AT tcw HClLLAND. PA 141."'1 MAIN ITMCT 11In .....111 DI'PICIt AT 11"......0. PA J. EAIT MAIN ITMET ''In'''.''1' QffJIlCE AT OUARRVVuz, PA 201 EAST ITATIlITRElET mn'...II1' 0I"l'lCE AT IPHRATA. PA 111 EAST "'AIN ITRUT "111111'-2104 (11'" 3M-OSZt 'AX c7ln za9.g181 october 23, 1995 CW COUNSEL PAUl. p, MU<MEV J. MARLIN SHREINER Boise Cascade Office Products Attention: Human Resources 3001 Frost Road Bristol, PA l79i5 \Cl\()&1 re: Howard Wagenheim To Whom It May Concern: Our firm represents Reliable Office Products ("Reliable") and The Office Works, with which Reliable is now affiliated. It has come to our attention that you have hired Howard Wagenheim as a salesman and that he is soliciting customers of Reliable on your behalf. That is in direct violation of Mr. Wagenheim's employment agreement with Reliable in which, among other things, he agreed not to compete with Reliable or to accept employment with a competitor of Reliable for a period of eighteen months after termination of his employment within the following Pennsylvania counties: Adams, Berks, Blair, Centre, Clinton, Cumberland, Dauphin, Franklin, Huntington, Juniata, Lancaster, Lebanon, Lycoming, Mifflin, Montour, Northumberland, perry, Schuylkill, Snyder, Union, and York. In addition Mr. Wagenheim agreed not to divulge any information that Reliable considers to be confidential, including customer information. We have demanded that Mr. Wagenheim immediately terminate his employment with you, that he refrain from contacting any person who was or is a customer of Reliable, and that he fully comply with all his other obligations under his employment agreement. If he fails to do so, we intend to take prompt legal action against him. As his new employer, you have been the vehicle by which he has been able to violate his employment agreement with Reliable. Please accept this as notice that we consider your employment of Mr. Wagenheim as interfering with Reliable's employment agreement with him. Furthermore, to the extent Mr. Wagenheim attempts to interfere with any existing contractual or prospective . ~ MGG/dmh 7834 30 , Boise Cascade Office Products October 23, 1995 Page 2 contractual relation between Reliable and its customers, we will impute his interference to you. Please confirm what your intentions are with respect to Mr. Wagenheim. Very truly yours, IJ1?Nm .<}. . ~;~~GUntharp cc: Carlton L. Miller Christopher Rocke William J. Cassidy, Esq. '. '. . ( , -. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . CIVIL ACTION - LAW THE OFFICE WORKS INC. 601 Gibson Blvd., Harrisburg, PA 17105, plaintiff HOWARD WAGENHEIM 5254 Strathmore Drive, Mechanicsburg, PA 17055, and BOISE CASCADE OFFICE PRODUCTS, INC. 3001 Frost Road, Bristol, PA 19007, Defendants No. , 1995 -65ft( H V4.., vs. PETITION FOR PRELIMINARY INJUNCTION pursuant to Rule 1531 of the pennsylvania Rules of Civil procedure, plaintiff The Office Works, Inc. ("Office works") petitions this court for a preliminary injunction against defendant Howard wagenheim and, in support thereof, states the following: 1. Office Works has filed a complaint in equity with this Court seeking a preliminary and permanent injunction against defendant Wagenheim from competition against Office Works and using Office Works' confidential business information and trade secrets. .1.. " 2. A true and correct copy of the complaint is attached as Exhibit "A" and incorporated by reference. 3. The averments in the complaint and the affidavit of Carlton L. Miller President of Office Works, attached as Exhibit "8" and incorporated by reference, demonstrate that defendant Wagenheim has violated the terms and conditions of his employment agreement with Office Works by soliciting Office Worke' customers and engaging in competition with Office Works within a fifty (50) mile radius of Office Works' place of business in Harrisburg, Pennsylvania, and by misappropriating and improperly utilizing Office Works' confidential information and trade secrets. 4. Office Works sent a letter to defendant Wagenheim reminding him of his obligation under the employment agreement and placing him on notice that it intended to enforce such agreements if necessary. 5. Defendant Wagenheim has refused to abide by the agreement and has solicited, and continues to solicit, both 4irectly and indirectly, the clients and customers and have interfered with Office Works' contractual relationships with its customers. 6. Upon information and belief, Wagenheim, with the encouragement of defendant Boise Cascade Office Products, Inc. has solicited and/or sold similar products and services to customere of Office Works. 2 .. , " 7. Defendant Wagenheim, by the aforementioned conduct, has violated the confidentiality provision and the covenant not to compete contained in his employment agreement with Office Works (as successor by merger to the interests of Reliable Office Product's, Inc. and breached fiduciary obligations owed to Office Works as a former employee relating to protection of trade secrets. 8. Unless the request for a preliminary injunction is granted, Office Works will suffer irreparable harm, injury and damages and will continue to suffer immediate and irreparable harm, injury and damage for which it has no adequate and complete remedy at law. 9. Defendant Wagenheim will not suffer any injury if the preliminary injunction is granted because the restraint placed upon him will not impede his ability to conduct any proper and legitimate business not in competition with Office Works, nor will it impede defendant Wagenheim's ability to secure other employment consistent with the terms of his employment agreement with Office Works. 10. Defendant Wagenheim's wrongful conduct is actionable and Office Works' right to relief is clear and Office Works will likely succeed on the merits of its claims. WHEREFORE, Office Works respectfully petitions this Court to enter a preliminary injunction enjoining defendant W8genheim until final hearing from doing the following acts 3 , '. '. directly or indirectly, individually or in concert with any other person, organization or corporation, including defendant Boise Cascade Office Products, Inc.: (a) Contacting or soliciting Office Works' customers, or accepting or soliciting competitive trade or business within fifty (SO) miles of Office Works' place of business in Harrisburg, Pennsylvania; (b) Cease competing with Office Works to the extent required by Wagenheim's employment agreement with Office Works; and (c) Cease using or employing any confidential or proprietary business information, work product and trade secrets, including but not limited to business techniques; sales strategies; materials and products; product or system designs and specifications; prices, price formula and cost information; customer materials and product specifications and requirements; suppliers; sales records; sample records; sales reports; customer contract reports; and customer records. APPEL & YOST BY J!lM~.~~~ Attorney I.D. No. 317~4 Matthew G. Guntharp Attorney I.D. No. 43770 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 4 ~ VERIFICATION I, CARLTON L. MILLER, verify that I am President of The Office Works, Inc., the plaintiff in the within actioni that the attached petition is based upon facts of which I have personal knowledge or information furnished to me by counseli that the language of the document is that of counsel and not my owni and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pat C.S.A. 54904 ~fn falsification to authorities. ~~ Carlton L. Miller 15 I ... .'''',."... --... .DII "UQlao (i) . ... .. ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY" PENNSYLVANIA CIVIL ACTION - LAW THE OFFICE WORKS INC. . . 601 Gibson Blvd., . . Harrisburg, PA 17105, . . plaintiff . . vs. : . . HOWARD WAGENHEIM . No. 1995 . , 5254 Strathmore Drive, Mechanicsburg, PA 17055, and : BOISE CASCADE OFFICE . . PRODUCTS, INC. 3001 Frost Road, : Bristol, PA 19007, . . 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 defense or objections to the claims as set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. \ ... . .,........~~....,".. .,.....,. ~"._.- . ","'"........""'-~._.. " YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Court Administrator's Office 4th Floor Cumberland County Courthouse Carlisle, PA 17013 APPEL & YOST By ram J. Cassidy, . Attorney I.D. No. 317 4 Attorneys for The Office Works, Inc. 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,. PENNSYLVANIA CIVIL ACTION - LAW ~ . THE OFFICE WORKS INC. . . 601 Gibson Blvd., . . Harrisburg, PA 17105, . . Plaintiff . . vs. . . HOWARD WAGENHEIM . No. 1995 . , 5254 Strathmore Drive, . . Mechanicsburg, PA 17055, and . . BOISE CASCADE OFFICE PRODUCTS, INC. . . 3001 Frost Road, . . Bristol, PA 19007, . . Defendants COMPLAINT 1. plaintiff, The Office Works, Inc. ("Office Works"), is a corporation authorized to do business in Pennsylvania with a place of business at 601 Gibson Road, Harrisburg, Pennsylvania 17105. Office Works is engaged in the business of selling, installing and servicing office equipment, office machines, office supplies office furniture and furnishings. 2. By merger and as the surviving corporation The Office Works, Inc. is the successor in interest to the rights and obligations of Reliable Office products, Inc.("Reliable"). ,: ..<>,"'{ ',,- ~n,;::I:iO'Li;'!.~"'.~. "~",,;.~... " 2. Defendant Howard Wagenheim ("wagenheim") is an individual residing at 5254 Strathmore Drive, Mechanicsburg, Pennsylvania 17055. 3. Defendant Boise Cascade Office Products, Inc. ("Boise") is believed to be a Delaware corporation with its principal office located at 3001 Frost Road, Bristol, Pennsylvania 19007. 4. On or about September 11, 1990, Wagenheirn was hired by Reliable (Office Works' predecessor in interest), as a sales representative. At the time of hiring Wagenheim executed an Employment Agreement (the "Agreement"). 5. A true and correct copy of the Agreement is attached as Exhibit "A" and incorporated by reference. 6. Among other things, the Agreement: required Wagenheim to promote the business and goodwill of Reliable (paragraphs 1 and 4) in the performance of his responsibilities as an employee of Reliable and 4; prohibited Wagenheim from divulging confidential or proprietary information during the term of his employment or any time thereafter: (paragraph 5); and prohibited him, whether directly or indirectly, from representing any business which competes against Reliable as described in paragraph 1 of this Complaint within fifty (50) miles of Harrisburg for a period of eighteen (18) months after termination of employment (paragraph 6.) 2 7. Wagenheim was continuously employed by Reliable and/or Office Works from september 11, 1990 until October, 1995, when his employment was terminated. During such time Wagenheim was employed as a sales representative. 8. During his employment tenure, Wagenheim had access to confidential information and trade secrets of Reliable/Office Works including, but not limited to their proprietary methods, costs and prices of its products, and strategies for seeking, soliciting and maintaining its business. In addition, Reliable and Office Works permitted and enabled Wagenheim to develop relationships with their customers and suppliers. 9. Shortly after his termination of employment Wagenheim began to sell office supplies, office furniture, office equipment and office furnishings on behalf of Boise within fifty (50) miles of Office Works' place of business in Harrisburg. 10. Upon information and belief, Wagenheim has solicited current customers of Office Works (who were customers of Reliable prior to the merger) on behalf of Boise, including but not limited to, The PMA Group, Inc., McCOy Electronic's Inc., Gannet Fleming, Inc., Ahlstrom Filtration, Inc., The Computer Learning Network and KHA/Keystone Health Plan Inc. These entities are customers of Reliable and/or Office Works who were serviced by Wagenheim during his employment tenure with Reliable and lor Office Works. 3 11. On October 23, 1995, Office Works, by and through its counsel, sent a letter to Wagenheim reminding Wagenheim of his obligations under the Agreement and placing him on notice that Office Works' policy was to enforce the terms of the Agreement. 12. A true and correct copy of the October 23, 1995 letter is attached as Exhibit "B" and incorporated by reference. 13. On October 23, 1995, Office Works sent a letter to Boise informing Boise of wagenheim's obligations under the Agreement and placing them on notice that Office Works' policy was to enforce the terms of the Agreement. 14. A true and correct copy of the October 23, 1995 letter is attached as Exhibit "C" and incorporated by reference. 15. Notwithstanding the letters, it is believed that Wagenheim has been sOliciting, and continues to sOlicit, customers of Office Works and is being encouraged to do so by Boise. COUNT I - WAGENHEIM Breach of Contract - Noncompetition 16. Office Works incorporates the averments contained in paragraphs 1 through 15 by reference as if set forth verbatim. 17. Due to the specialized nature of the business engaged in by Office Works and the relationships that its sales representatives develop with prospective and actual customers, paragraph 6 of the Agreement provided as follows: 4 6. Employee agrees that for a period of eighteen months after the termination of employment, FOR ANY REASON, HE WILL NOT enter into, BE EMPLOYED BY OR IN ANY MANNER BE ASSOCIATED WITH an office equipment, office machines, office supply, office furniture, or office furnishings business within SO-mile radius of Harrisburg. IN ADDITION TO THE FOREGOING PROHIBITIONS, THE EMPLOYEE AGREES THAT for a period and within such radius, HE WILL NOT engage in any other BUSINESS activity WHICH MAY BE in direct competition with the BUSINESS OF THE Company. The office furnishings business shall be deemed to include BUT NOT BE LIMITED TO, the sale of FURNITURE, draperies, carpeting, or any other items that ARE AT ANY TIME during the term OF THIS AGREEMENT, INCLUDING PARAGRAPHS 5 AND 6, sold by the Company and shall also include the CONSULTATION, planning, designing, or specifying of office or commercial furnishings or decor. lB. After the termination of his employment and without the consent of Office Works, Wagenheim violated and materially breached the Agreement by directly and indirectly representing a company competing with Office Works within fifty (50) miles of Office Works' place of business in Harrisburg. Among other things, Wagenheim solicited Office Works customer's in an effort to induce them to sever their relationship with Office Works and purchase competitive products and services from Boise. 5 19. Office Works believes and therefore avers that unless and until restrained by this court, Wagenheim will continue to breach and violate paragraph 6 of the Agreement. 20. As a direct, proximate and foreseeable result of Wagenheim's breach of the Agreement, Office Works has suffered irreparable harm, injury and damage and will continue to suffer immediate and irreparable harm, injury and damages for which it has no plain, adequate and complete remedy at law, unless this Court preliminarily enjoins Wageuheim until trial and permanently enjoins them thereafter for a period of eighteen (18) months following entry of the preliminary injunction, from directly or indirectly, alone or in association with any other person, organization or corporation competing with Office Works and contacting, soliciting or dealing with any customer of Office Works within fifty (SO) miles of Office Works' Harrisburg business location. WHEREFORE, Office Works requests that the Court enter judgment in its favor and against Wagenheim as follows: (a) Enter an Order preliminarily until trial and permanently thereafter for a period of eighteen (18) months following entry of the preliminary injunction, restraining and enjoining Wagenheim from, directly or indirectly, alone or in association with any other person, organization or corporation, from competing with Office Works within fifty (50) miles of Office Works' Harrisburg business location or otherwise 6 soliciting or in any other manner contacting or dealing with any customer of Office Works within fifty (SO) miles of its Harrisburg business location; (b) Direct Wagenheim to account for and to pay to Office Works an amount equal to all the receipts, commissions, salary, profits or other income equal to all the receipts, commissions, salary, profits or other income earned by Wagenheim as a result of his competition with Office Works and his solicitation of Office Works' customers; (c) Award Office Works all compensatory and consequential damages resulting from Wagenheim's competition with Office Works and his solicitation of Office Works' customers; (d) Award Office Works its costs and expenses and such other relief as the Court may deem just and proper; and (e) Retain jurisdiction of this matter for a period of eighteen (18) months following entry of the preliminary injunction to determine whether this Court's Orders are obeyed. COUNT II - WAGENHEIM Breach of Contract and Breach of Fiduciary Obliqations and Unfair Competition 21. Office Works incorporates the averments contained in paragraphs 1 through 20 by reference as if fully set forth verbatim. 22. Paragraph 5 of the Agreement between Reliable and Wagenheim provides as follows: 7 ;j 5. The employee recognizes and acknowledges that he will have access to certain confidential information of the company and that such information constitutes valuable, special, and unique property of the Company. Except in connection with the proper performance of the duties assigned to him. Employee shall not, during his employment or AT ANY TIME thereafter and irrespective of the time, manner or cause of any termination of employment, directly or indirectly disclose OR PROVIDE to ANY PERSON, BUSINESS, PARTNERSHIP OR CORPORATION information or knowledge which he has acquired during his employment with the Company. THE INFORMATION REFERRED TO IN THIS PARAGRAPH SHALL INCLUDE, But not BE limited to, names of suppliers and customers, BUSINESS Form, ordering sheets, trademarks, trade secrets, bulletins, catalogues, and/or other written material published by the company or obtained from the Company. In the event of a breach or threatened breach by the Employee of the provisions of this paragraph, the Company shall be entitled to an injunction restraining the Employee from disclosing ANY such information or knowledge. IN ADDITION TO THE FOREGOING, the Company SHALL BE ENTITLED TO PURSUE any other EQUITABLE OR LEGAL remedies available including MONETARY damages. 23. As a former employee of Reliable and Office Works, Wagenheim owes a duty of loyalty to Office Works. 8 ~ 24. wagenheim breached his duty to Office Works, breached the Employment Agreement and engaged in unfair competition by, among other things, misappropriating, using and disclosing trade secrets and other confidential and proprietary information of Office works. 25. As a direct, proximate and foreseeable result of wagenheim's breach of his fiduciary obligations to Office works and breach of the Agreement, Office Works has been and will continue to be irreparably damaged unless otherwise enjoined by this Court. WHEREFORE, Office Works requests that the court enter judgment in its favor and against wagenheim as follows: (a) Enjoin wagenheim from misappropriating, using or disclosing Office Works' trade secrets or other confidential or proprietary information and unfairly competing with Office Works in breach of his fiduciary obligation and Employment Agreementsl (b) Award Office Works all compensatory and consequential damages resulting from wagenheim's breach of his fiduciary obligations and Employment Agreementsl (c) Award Office Works its costs and expenses and such other and further relief as this Court deems just and proper. 9 COURT III - WAGENHEIM AND BOISE Intentional Interference With Existinq and Prospective Contractual Relations 26. Office Works incorporates the averments contained in paragraphs 1 through 25 by reference as if fully set forth verbatim. 27. At the time of Wagenheim's termination of employment, Office Works enjoyed existing and prospective contractual relationships with its customers. 28. Wagenheim was familiar with the terms and conditions of Office Works' existing and prospective contractual relationships. 29. Prior to his termination, it is believed that Boise solicited Wagenheim to accept employment with Boise for the specific purpose of having Wagenheim solicit customers of Office Works which he serviced while employed by Office Works. 30. Boise solicited, hired and encouraged Wagenheim to solicit customers of Office Works notwithstanding Boise's knowledge of the Employment Agreement Wagenheim has with Office Works and apparently inducing Wagenheim to breach the employment agreement. 31. Following his termination of employment, Wagenheim, on behalf of Boise, without privilege or justification, engaged in the solicitation of Office Works' customers within fifty (50) miles of its place of business in Harrisburg, Pennsylvania. 10 32. On October 23, 1995, Office Works informed Boise by letter, a copy of which is attached as Exhibit "C," that Boise was encouraging and allowing Wagenheim to violate the terms of the Agreement, and interfering with Office Works' longstanding relationships with its customers. 33. Office Works believes and therefore avers that Wagenheim and Boise, without justification or excuse, improperly and maliciously interfered with Office Works' contractual relationships with its customers in violation of paragraph 6 of the Agreement. 34. Paragraph 6 states, in part, the following: 6. Employee agrees that for a period of eighteen months after the termination of employment, FOR ANY REASON, HE WILL NOT enter into, BE EMPLOYED BY OR IN ANY MANNER BE ASSOCIATED WITH an office equipment, office machines, office supply, office furniture, or office furnishings business within 50-mile radius of Harrisburg. IN ADDITION TO THE FOREGOING PROHIBITIONS, THE EMPLOYEE AGREES THAT for a period and within such radius, HE WILL NOT engage in any other BUSINESS activity WHICH MAY BE in direct competition with the BUSINESS OF THE Company. The office furnishings business shall be deemed to include BUT NOT BE LIMITED TO, the sale of FURNITURE, draperies, carpeting, or any other items that ARE AT ANY TIME during the term OF THIS AGREEMENT, INCLUDING PARAGRAPHS 5 AND 6, sold by the Company 11 and shall also include the CONSULTATION, planning, designing, or specifying of office or commercial furnishings or decor. 35. wagenheim's and Boise's acts were not privileged and were carried out for the improper purpose of obtaining financial and other gains at the expense of Office Works. 36. As a direct, proximate and foreseeable result of the defendants' unlawful acts, Office Works has been harmed, injured and damaged in an amount in excess of $20,000.00 WHEREFORE, Office Works requests that this Court enter judgment in its favor and against the defendants as follows: (a) Award Office Works compensatory damages in an amount equal to the profits earned by the defendants from the customers, trade or business improperly obtained by or through Wagenheim; . 1 I . (b) Award Office Works its consequential damages resulting from the aforesaid conduct; (c) Award Office Works exemplary or punitive damages; and (d) Award Office Works its costs and expenses and such other relief as this Court deems just and proper. 12 .. ".,":'.Y~".;'j.'''. .>-. ,_ -".,',', . .. . . ., , COUNT IV - WAG EN HElM AND BOISE For An Accountinq 37. Office Works incorporates the averments contained in paragraph 1 through 36 by reference as if fully set forth verbatim. 38. Office Works believes and therefore avers that there is presently due and owing Office works from the defendants' revenues and profits an amount in excess of $20,000.00, the exact amount being unknown to Office Works, as the defendants have never rendered Office Works any accounting of the revenues, profits or other income they received as a result of the breach of the Agreements and the interference with contractual relations as describe more fully above. WHEREFORE, Office Works requests that this Court enter judgment in its favor and against the defendants as follows: (a) Direct the defendants to account fully to Office Works for all revenues, profits, or other income earned by them as a result of Wagenheim's violation and breach of the Agreement and Wagenheim's and Boise's interference with contractual relations, including revenues, profits, or income earned from the customers, trade or business of Office Works that were directly or indirectly accepted by Wagenheim as an individual or as an agent, principal, consultant, employee, sales 13 . I I , . II I representative or in any other capacity and from all customers, trade or business of Office Works referred to wagenheim by any officer, director, partner, employee, agent or otherwise thereof I (b) Award Office Works all such revenues, profits and other income shown to be due to Office works by such accounting I and (c) Award Office Works its costs and expenses and such other relief as this Court deems just and proper. APPEL & YOST BY i iam J. Cass dy, Attorney I.D. No. 3 Matthew G. Guntharp Attorney I.D. No. 43770 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 Attorneys for Plaintiff The Office Works, Inc. 14 . .. I . I. . VERIFICATION I, CARLTON L. MILLER, verify that I am President of The Office Works, Inc., the plaintiff in the within action; that the attached Complaint is based upon facts of which I have personal knowledge or information furnished to me by counsel; that the language of the document is that of counsel and not my own; and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pat C.S.A. 54904 re orn falsification to authorities. Carlton L. Miller 15 B \IQlllX3 ,. . <" .- J):" ".' 't<- i.... -::)!-~ ; ~,: jSJ' $:;' f.1i .....,i! (: ,,"' ...........,.,,,.. ~~.~ . .. . . . "I , IN THB COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE OFFICB WORKS INC. 601 GibBon Blvd., Harrisburg, 'PA 17105, Plaintiff vs. HOWARD WAGENHEIM 5254 Strathmore Drive, Mechanicsburg, PA 17055 BOISE CASCADE OFFICE PRODUCTS, INC. 3001 Frost Road, Bristol, PA 19007, Defendant No. , 1995 AFFIDAVIT OF CARLTON L. MILLER I, CARLTON L. MILLER, swear that the foregoing facts are true and correct to the best of my knowledge, information and belief: 1. I am President of the The Office Works, Inc.( the .Office Works.) , and am authorized to make this affidavit on its behalf. The facts set forth in this affidavit and in the petition for preliminary Injunction filed in this matter are based upon my personal knowledge or have been assembled from employees of Office Works. ? ~ ~ ~ . .. . .. . . . I . I , 2. Office Works sells, services and installs office equipment, office supplies, office machines and office furniture. 3. Office Works employs sales personnel to sell to its customers its products and to service its products. 4. Office Works maintains its customer list, its pricing and marketing strategies, its products and customer's needs, among other information, in a confidential manner since they are primary assets of the company. 5. On September 11, 1990, Howard Wagenheim became employed with Reliable Office Products, Inc. ("Reliable"). The Office Works, Inc., by merger and with Office Works as the surviving corporation, succeeded to the rights and obligations of Reliable Office products, Inc. Prior to his employment, Wagenheim executed an employment agreement' (the "Agreement"). The Agreement contained restrictive covenants prohibiting Wagenheim from competing with Reliable, and as a result of the merger, with Office Works for a period of Eighteen (19) months following the termination of his employment within a fifty (SO) mile radius of Reliable/Office works' Harrisburg place of business. A copy of the Agreement is attached to the complaint as Exhibit "A." 6. On October 3, 1995, Mr. Wagenheim's employment was terminated. '. .. . , . ' . .. I . . . 7. Mr. Wagenheim is currently employed with Boise Cascade Office products, Inc., which is a competitor of Office Works. 8. Notwithstanding the covenant not to compete contained in the Agreement which Wagenheim signed at the time he was hired, Wagenheim has competed with Office Works and solicited prior customers of Office Works. 9. By virtue of Wagenheim's employment with Office Works' predecessor in interest, he obtained much of Reliable's and Office Works' confidential and proprietary trade data, information and trade secrets including, but not limited to, the identity of clients and customers, technical data, pricing policies and marketing strategies, and customer's product needs. 10. Wagenheim's contacts and solicitations with Reliable/ Office Works' customers and use of its trade secrets and confidential business information has damaged Office Works and will continue to damage Office Works' assets in the future unless MILLER Affirmed to and subscribed ) ) ) ) ) ) ) before me this i 311-, day of NOvt"'mb<' r- 1995. &~~J..-11.l4J~I~ otary Public Lancaster, Lancaster County My c Notan.1 5001 Cynthia A. Dolo"u. Notary Public Lancaster. lnncnster County My Commission E.piro.ApnI24,1999 2 pi;;, ,. J. < .~ THE OFFICE WORKS INC, 601 Gibson Blvd" Harrisburg, PA 17105. Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs, HOWARD WAGENHEIM 5254 Strathmore Drive, Mechanlcsburg. PA 17055, and BOISE CASCADE OFFICE PRODUCTS, INC, 3001 Frost Road Bristol, PA 19007, Defendants . . : 95-6599 EQUITY TERM ~ AND NOW, THIS 20TH DAY OF NOVEMBER. 1995, upon consideration of plaintiffs petition for a preliminary Injunction. a hearing Is scheduled for Thursday. January 4, 1996. at 8:00 a,m, In Courtroom No, 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, WIlliam J, Cassidy, Jr,. Esquire Appel & Yost 33 North Duke Street Lancaster. PA 17602 . '"""""" ..........--... ,...._......_~.-_..._.n' I,oy LO i I 50 "I lOr. ..1 ~a .,' f ,;. JFF " ,.r .1 "',;', - ' 1<.\J14."t.,';,.. . ,",:" P;,t'I'~') ~ ,::~I':., ." " f ~ I ',. 'f;' 1_ .- 'f'oX) g- 11Iln;~^ . /1 ~_ a. ~ 'II- ~ _.-- ""A<1IId6r> ~'I<d..,-- ey ~..:.t ~A- ~ 1I'.;;;o.~) ('''12/ j4lt',.~ df t'~ Attorneys for Defendant Boise Cascade Office Products, Inc. '\JI1l.UDATAI'ILNIHDOCtNG1.'lA.I~ CnMId-1Ml4't'0I1t21 AM lmMd 11,'1WI'0I)70Uld v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6599 EQUITY TERM THE OFFICE WORKS INC., Plaintiff HOWARD W AGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTS ON, DEARDORFF, WILLIAMS & OTTO in behalf of Defendant Boise Cascade Office Products, Inc. in the above matter, MARTSON, DEARDORFF, WILLIAMS & OTTO By .,fu...~) w.Lt.. ""- Thomas J. Williams, Esquire Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: December 4, 1995 CERTIFICATE OF SERVICE I hereby certifY that a copy of the foregoing Praecipc was served this date by depositing same In the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Keith 0, Brenneman, Esquire SNELBAKER & BRENNEMAN, P.C. 44 West Main Street P.0, Box318 Mcchanicsburg. PA 17055 Matthew Guntharp, Esquire APPEL & YOST 33 North Duke Street Lancaster. PA 17602 MARTSON. DEARDORFF, WILLIAMS & OTIO By -; ~} /;VtA/. eh,"~ Thomas J. WilJ(ams, Esquire Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendant . Boise Cascade Office Products. Inc. Dated: December 4, 1995 '.\f1LU\DATAf'U.I'(]INDOCtN4J1.o\Hl-l...... CbeIIt 1""".29 21 AM lftW4 ,"""alGlU'" THE OFFICE WORKS INC., Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV AN1A NO. 95-6599 EQUITY TERM HOWARD W AGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendants ANSWER TO COMPI.AINT AND NOW, comes Defendant, Boise Cascade Office Products, Inc., by and through its attorneys, MARTSON, DEARDORFF, WILLIAMS & OTTO, and avers as follows in answer to Plaintift's Complaint: I. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to the accuracy of this allegation, the same is therefore denied and proof demanded. 2. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to Plaintift's corporate history, the same is therefore denied and proof demanded. 2.(sic) Admitted. 3. Admitted, except that the office ofthe answering Defendant in Bristol is a regional office. 4. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to Defendant Howard Wagenheim's employment history with Plaintiff, the same is therefore denied and proof demanded. 5. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to the accuracy of Exhibit "A", the same is therefore denied and proof demanded. 6. Denied as stated. The agreement speaks for itself. 7-8. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to the employment history of Defendant Howard Wagenheim with Plaintiff, the same is therefore denied and proof demanded. 9. Admitted. 10. Denied and denied as stated. It is specifically denied that Defendant Howard Wagenheim was hired by the answering Defendant for the purpose of soliciting the customers of Plaintiff. On the contrary, the business of the answering Defendant was expanding, and an additional sales representative was needed. Because Defendant Howard Wagenheim lives in the HBI1isburg area. he was assigned to service the customers and potential customers of the answering Defendant in that market. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to the identity of Plaintifl's customers, fonner customers or potential future customers, the same is therefore denied and proof demanded. It is specifically denied that any of the entities identified in Paragraph 10 of Plaintiff's Complaint are customers of the answering Defendant obtained by Defendant Howard Wagenheim, except Gannet Fleming, Inc. In fact, with the exception of the PMA Group, Inc., none of the entities are customers of answering Defendant. The PMA Group, Inc. is a national account that was put out for bid and the bid of the answering Defendant was accepted. This was done through the Bristol office of the answering Defendant, and Defendant Howard Wagenheim had no involvement in this whatsoever. The same process is ongoing with regard to KHNKeystone Health Plan, Inc., a subsidiary of Pennsylvania Blue Shield. These negotiations are being conducted out of the Bristol office, do not involve Defendant Howard Wagenheim, and, in fact, have been ongoing since before Defendant Howard Wagenheim was hired by the answering Defendant. 11-12. After reasonable investigation. the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to what leuer(s) were sent to Defendant Howard Wagenheim by Plaintiff, the same is therefore denied and proof demanded. 13-14. Admiued only that The Office Works Inc. received the letter dated October 23, 1995 attached to the Complaint as Exhibit "C." That leuer speaks for itself and any inference that the referenced agreement was valid and enforceable is specifically denied. 15. Denied and denied as stated. The answer of Paragraph 10 hereof is incorporated herein by reference thereto. COUNT I . W AGENHEIM Breach nfCnntract .. Non-competition 16-20. These avennents are directed to a party other than the answering Defendant and therefore no response is required COUNT II . W AGENHEIM Breach of Contract and Breach of Fiduciary Oblillations and Unfair Competition 21-25. These avennents are directed to a party other than the answering Defendant and therefore no response is required. COUNT III . W AGENHEIM AND BOISE Intentional Interterence with Rxi~tin~ and Prospective Contractual Relatiom; 26. Paragraphs I through 25 hereofare incorporated herein by reference thereto. 27, After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to Plaintiffs contractual relationships with existing and prospective customers, the same is therefore denied and proof demanded. 28. After reasonable investigation, the answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to the nature and extent of Defendant Howard Wagenheim's familiarity of existing and prospective contractual relationship with Plaintiffs customers, the same is therefore denied and proof demanded. 29. Denied. Answering Defendant did not employ or agree to employ, Defendant Howard Wagenheim, until after he was fired by Plaintiff. It is specifically denied that answering Defendant hired Defendant Howard Wagenheim for the specific purpose of having Defendant Howard Wagenheim solicit customers of Plaintiff which he serviced while employed by Plaintiff. On the contnuy, Defendant Howard Wagenheim was hired to fill a need created by growing business of answering Defendant, and such hiring had nothing whatsoever to do with customers of Plaintiff. By way of further answer, Paragraph 10 hereof is incorporated herein by reference thereto. 30. Denied. Paragraph 29 hereof is incorporated herein by reference thereto. It is specifically denied that answering Defendant induced Defendant Howard Wagenheim to breach any agreement that he had with Plaintiff. On the Contrary, answering Defendant was under the belief that the alleged agreement, Exhibit "A" to Plaintift's Complaint, had been superseded by the tennination of Defendant Howard Wagenheim by Plaintiff and the events surrounding said tennination. 31, Denied and denied as stated. Paragraph 10 hereof is incorporated herein by reference thereto. 32, Admitted only that answering Defendant received a letter from Plaintiff's representative dated October 23, 1995 which is attached to Plaintift's Complaint as Exhibit "C." The balance of the averment is denied for the reasons set forth herein. 33. This allegation is a conclusion of law which requires no answer. To the extent an answer is required, the allegation is denied for the reasons set forth herein. It is specifically denied that answering Defendant interfered with Plaintift's contractual relationships with its customers. In fact, after reasonable investigation. the answering Defendant is without sufficient knowledge or information to form a beliefas to the nature and extent of Plain tift's contractual relationships, ifany, with his customers, nor the identity of his customers, and the same is therefore denied and proof demanded. 34. Admitted only that this allegation accurately restates Paragraph 6 of Exhibit "A" to Plaintiff's Complaint. Any inference as to the effect of the stated words is a conclusion of law to which no answer is required. 35, This allegation is a conclusion of law which requires no answer. To the extent an answer is required, it is denied that answering Defendant was prohibited in any way from entering into an employment agreement with Defendant Howard Wagenheim, or that answering Defendant obtained financial or other gains at the expense of The Office Works Inc. other than incidentally through legal and proper competition. 36. Denied that Plaintiff has suffered or is entitled to any damages. WHEREFORE, answering Defendant Boise Cascade Office Products, Inc. demands that the Plaintift's Complaint be dismissed. COUNT IV . W AGENHEIM AND BOISE For An Accollntillll 37, Paragraphs 1 through 36 hereof are incorporated herein by reference thereto. 38. Denied that Plaintlffhas suffered or is entitled to any damages, WHEREFORE, answering Defendant Boise Cascade Office Products, Inc. demands that the Plaintiffs Complaint be dismissed. MARTSON, DEARDORFF, WILLIAMS & OTTO By Ij~ ta ~ 10;_'", Thomas J. Will ams, Esquire Ten East High Street Carlisle, PA 17013-3093 (117) 243-3341 Attorneys for Defendant Boise Cascade Office Products, Inc. Date: Decenber 15, 1995 VERIFICATION Pat Ware, who is General Manager of Boise Cascade Office Products, Inc. and acknowledges that she has the authority to execute this Verification in behalf of Boise Cascade Office Products, Inc. certifies that the foregoing Answer is based upon infonnation which has been gathered by my counsel in the preparation of the lawsuit. The language of this Answer is that of counsel and not my own. I have read the document and to the extent that the Answer is based upon infonnation which I have given to my counsel, it is true and correct to the best of my knowledge, infonnation and belief. To the extent that the content of the Answer is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. e.s. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false avennents, I may be subject to criminal penalties. Pat '" .'''.>..'''.;;;,'''.'-'S1'-'M;>!!;<.,''''"''_~'''->~_" /!; CERTIFICATE OF SF-RVleE I hereby certifY that a copy of the foregoing Answer was served this date by depositing same in the Post Officc at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Keith O. Brenneman, Esquire SNELBAKER & BRENNEMAN, P.C. 44 West Main Street P. O. Box318 Meehaniesburg, PA 17055 Matthew Guntharp, Esquire APPEL & VOST 33 North Duke Street Lancaster, PA 17602 MARTSON, DEARDORFF, Wll.L1AMS & OTTO By -rk..M)WL_.___ Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Boise Cascade Officc Products, Ine, Dated: December 15, 1995 ~".- .' - .. ~ .'- - - - -, ,,," ., .,',. ,.. . ~~ .;,.'. "- - ._~~~ ; - . - ,~. ,.<:;,,",' ", ~^-,"~"-^-'.-"'--'-~ P,V'ILII\DATAI'lLMINDOC'tHQ'.AHI ,... er..t 1~'.,2tJI AM .......1~'al,ouaPW THE OFFICE WORKS INC" Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6599 EQUlTV TERM v, HOWARD WAGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendants ANSWF.R TO PLAINTIFFS PETITION FOR PREI.IMTNARV INTIINCTION AND NOW, comes Defendant, Boise Cascade Office Products, Inc., by and through its attorneys, MARTSON, DEARDORFF, WILLIAMS & OlTO, and avers as follows in answer to Plaintift's Petition for Preliminary Injunction: 1-2. Admitted only that Petitioner has filed a Complaint as alleged, It is specifically denied that the Complaint has any merit as more specifically set forth in the Respondent's Answer to the Complaint which is incorporated herein by reference thereto. 3, Denied. Plaintift's Complaint as well as the Affidavit of Carlton L. Miller are inaccurate. Respondent's Answer to the C;>mplaint is incorporated herein by reference thereto. 4. After reasonable investigation, the answering Defendant is without sufficient knowledge or information to fonn a belief as to what Plaintiff said to Defendant Howard Wagenheim, the same is therefore denied and proof demanded. By way of further answer, Respondent believes, and therefore avers, that the alleged agreement has been superseded by Petitioner's firing of Defendant Howard Wagenheim, and the circumstances surrounding same, and is therefore of no further effect and unenforceable. 5. Denied. The Answer to the Complaint and Paragraph 4 hereof are incorporated herein by reference thereto. It is specifically averred that any contact with a customer of Petitioner by Defendant Howard Wagenheim is solely incidental to his employment with Respondent. Further, Respondent has no knowledge or information regarding interference with the contractual relationships that Plaintiff may have with any of its customers, does not believe there has been any such interference, and therefore denies same and demands proofthereof. 6. Admitted only that there has been some insignificant sales made by Defendant Howard Wagenheim to customers of Petitioner. The balance of the averment is denied. It is specifically denied that Respondent "encouraged" Defendant Howard Wagenheim to solicit J customers of Petitioner. To the contrary, Respondent's sole concern was servicing its expanded customers, and not soliciting and/or selling to customers of Petitioner, except and as so far as this occurred incidentally in overall business development, Defendant Howard Wagenheim's assignment was as a sale representative of Respondent in the central PeMsylvania market, and any contact with customers of Petitioner was solely incidental to that assignment, and, in fact, represents an insignificant portion of Respondent's business in that market. 7. Denied. By way of further answer, Respondent believes, and therefore avers, that the alleged agreement has been superseded by Petitioner's firing of Defendant Howard Wagenheim, and the circumstances surrounding same, and is therefore of no further effect and unenforceable. 8. This allegation is a conclusion oflaw requiring no answer. To the extent an answer is required, it is averred on the contrary that Petitioner has suffered no harm and is entitled to no damages. 9. Denied. On information and belief, Defendant Howard Wagenheim has devoted his career, at least twenty years, to the office products business in the Harrisburg area. If he were enjoined from working in that business and in that market, he would essentially suffer a loss of his livelihood, unless he relocated himself and his family out of the area. Either way, it would be an extreme hardship and not the subject of equitable relief. 10, Denied as a conclusion of law. WHEREFORE, Respondent demands that the Petition for Preliminary Injunction be denied. MARTSON, DEARDORFF, WILLIAMS & OTTO By5fu.,.M~) Vvd -..'V Thomas J. WilGams, Esquire Ten East High Street Carlisle, PA 17013-3093 (717) 243.3341 Attorneys for Defendant Boise Cascade Office Products, Inc. Date: Decerrber 15, 1995 ,<f' ~,'.".i'O VERIFICATION Pat Ware, who is General Manager of Boise Cascade Office Products, Inc. and acknowledges that she has the authority to execute this Verification in behalf of Boise Cascade Office Products, Inc. certifies that the foregoing Answer to Plaintift's Petition to Preliminary Injunction is based upon infonnation which has been gathered by my counsel in the preparation of the lawsuit. The language of this Answer is that of counsel and not my own. I have read the document and to the extent that the Answer is based upon infonnation which I have given to my counsel, it is true and correct to the best of my knowledge, infonnation and belief. To the extent that the content of the Answer is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. e.s. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false avennents, I may be subject to criminal penalties. -.,.z Pat Ware . CP.RTIFICATR OF SERVlCP. I hereby certifY that a copy of thc foregoing Answer to Plalntift's Petition for PrcUmlnary Injunction wu SCfVed this date by depositing same in the Post Office at CarUslc, P A. first clw mall, postagc prepaid, addreascd as foUows: Keith 0, BreMeman, Esquire SNELBAKER & BRENNEMAN, P,C. 44 West Main Street p, 0, Box 318 Mcchanlcsburg, PA 17055 Matthew Guntharp, Esquire APPEL & YOST 33 North Duke Street Lancaster, PA 17602 MARTSON, DEARDORFF, wn.LIAMS & OITO By ~~4A ) 1MJt.~ Thomas J. Williams, Esquire . Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Boise Cascade Office Products, Inc, Dated: Decentler 15, 1995 > .. '1....-- ." _ __ '"' ,_, , ^" . ~ _ '. ,_ . "- .< , , t_. _ ~" .. ~ _ '., ___ _ ^ _ ,,' .' ~O:;--' "1It.-__<:;j,,~_..,4~ ^!-,.. _,.L LAW OP'P"CU SNELOAKER 8< BRENNEMAN THE OFFICE WORKS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6599 EQUITY TERM v. . . . . HOWARD WAGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendants . . . . NOTICE TO PLEAD TO: The Office Works, Inc., plaintiff and Matthew Guntharp, Esquire Appel & Yost 33 North Duke Street Lancaster, PA 17602 You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter and Counterclaim or a Default Judgment may be entered against you. By: S'?l=' P. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendant Howard Wagenheim Date: December 22, 1995 ~... THE OFFICE WORKS, INC., Plaintitt v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6599 EQUITY TERM HOWARD WAGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Detendants ANSWER WITH NEW MATTER AND COUNTERCLAIM OF DEFENDANT HOWARD WAGENHEIM Howard Wagenheim, by his attorneys, Snelbaker & Brenneman, P. C. states the following in response to Plaintiff's Complaint: ANSWER 1. Admitted upon information and belief. 2. Paragraph 2 contains an unwarranted conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, after reasonable investigation, this party is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 2; therefore, same are denied and proof thereof demanded. 2. Admitted. J. Admitted upon information and belief. LAW oFFIce. SNILD~KER III BRENNEMAN 4. Admitted in part; denied in part. It is admitted that Wagenheim was hired by Reliable Office Products, Inc. ("Reliable") as a sales representative and that at the time of LAW O....ICE. SNELDAKER a BRENNEMAN . his hiring, he executed an Employment Agreement ("Agreement"). plaintiff's allegation that Reliable was the Office Works' predecessor in interest is an unwarranted conclusion of law to which no response is required by this partY1 therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). 5. Admitted. 6. Denied. It is denied that the Agreement sets forth what is summarized and characterized by Plaintiff in Paragraph 6 of its complaint. To the contrary, the terms of the Agreement, being in writing, speak for themselves. By way of further answer, Paragraph 6 contains unwarranted conclusions of law to which no response is required by this partY1 therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). 7. Admitted in part1 denied in part. It i3 admitted that Defendant wagenheim wae continuously employed by Reliable from september 11, 1990 until October 3, 1995 and that during that time, he was a sales representative. After reasonable investigation, this party is without sufficient knowledge or information to form a belief as to whether he was ever employed by the Office Works1 therefore, Plaintiff's allegation that he was employed by the Office Works is denied. 8. Admitted in part1 denied in part. It is admitted that during his employment with Reliable, Defendant Wagenheim had -2- LAW O"ICt. SNELD4KER III BRENNEM4N access to proprietary methods, costs, pricing and marketing strategies of Reliable. It is also admitted that Reliable permitted and enabled Wagenheim to develop relationships with certain customers and suppliers. It is denied that Wagenheim had access to any confidential information and trade secrets of the Office Works, or had access to Office Works' proprietary methods, costs, prices, products and strategies for seeking and maintaining its business. Finally, it is denied that the Office Works in any way permitted and enabled Wagenheim to develop relationships with its customers and suppliers. To the contrary, Wagenheim was wrongfully terminated at the time when the Office Works purportedly was implementing practices and procedures different from those of Reliable. 9. Admitted in part; denied in part. Although it is admitted that Wagenheim began selling office supplies, furniture and equipment within fifty (50) miles of Reliable's business in Harrisburg after his wrongful termination from employment with Reliable. It is denied, to the extent is it implied, that such action in any way constitutes a breach or violation of the Agreement for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 10. Admitted in part; denied in part, It is admitted that Wagenheim solicited certain customers of Reliable who were not customers of the Office Works, while employed by Boise Cascade -3- .>1'", .".....',.... ..,. LAW O"ICU SNELDAKER III BRENNEMAN '. Office products, Inc. ("Boise"), specifically The PMA Group, Inc., Gannett Fleming, Inc., Ahlstrom Filtration, Inc., The Computer Learning Network and KHP/Keystone Health Plan, Inc. (Not KHA/Keystone Health Plan, Inc. as alleged by Plaintiff). By way of further answer, PMA Group, Inc., Gannett Fleminq, Inc., The computer Learning Network and KHP/Keystone Health Plan, Inc. were accounts Wagenheim brought with him when he started his employment with Reliable. It is denied that Wagenheim solicited The Computer Learning Network while employed by Boise, or that the solicitation of any of the customers identified be plaintiff is or would constitute a breach of the Agreement or a violation of any of its terms for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 11. Admitted in part; denied in part. It is admitted that a letter was sent to Defendant Wagenheim on October 23, 1995 by the Office Works' counsel. The content of that letter, being in writing, speaks for itself. Therefore, Plaintiff's characterization or summary of its content as set forth in Paragraph 11 is denied. 12. Admitted in part; denied in part. Although it is admitted a correct copy of the letter of October 23, 1995 is attached to the Complaint as "Exhibit B", the content of said letter is denied as containing unwarranted and erroneous conclusions of law. -4- LAW O....ICE. SNELBAKER III BRENNEMAN 13. Admitted upon information and belief with the qualification that the letter, being in writing, speaks for i tselt . 14. Admitted upon information and belief. 15. Denied. It is denied that this party is soliciting and continues to solicit customers of the Office Works. To the contrary, this party has solicited only certain customers of Reliable which were customers of Reliable whose accounts were handled by Wagenheim during his employment with Reliable. It is further denied that Boise has in any way encouraged Wagenheim to solicit customers of the Office Works. COUNT I - WAGENHEIM 16. The ave~ments of Paragraphs 1 through 15, inclusive, of this Answer are incorporated by reference herein. 17. Denied. It is denied that the Agreement, or any term or part of the Agreement, between Wagenheim and Reliable contains any provision due to any specialized nature of the business engaged in by the Office Works and the relationship which Office Works' sales representatives develop with prospective and actual customers. After reasonable investigation, this party is without sufficient knowledge or information to form a belief as to what the "specialized nature of the business engaged in by Office Works" is; therefore, same is denied and proof thereof demanded. By way of further answer, paragraph 6 of the Agreement, being in writing, speaks for itself. -5- LAW O,nCE. SNILDAKER a BRENNEMAN 18. Denied. Paragraph 18 of Plaintiff's complaint contains an unwarranted and erroneous conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that Wagenheim violated or materially breached the Agreement for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. It is further denied that Wagenheim solicited Office Works' customers in an effort to induce them to sever their relationship with the Office Works and purchase competitive products and services from Boise. 19. Denied. Paragraph 19 of Plaintiff's Complaint contains unwarranted and erroneous conclusions of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that Wagenheim breached or violated Paragraph 6 of the Agreement. 20. Denied. Paragra~h 20 of Plaintiff's Complaint contains a series of unwarranted and erroneous conclusions of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that this party breached the Agreement, that Office Works has suffered irreparable harm, injury and damage and will continue to suffer immediate and -6- ~ LAW On'IC!a SNELDAKER II BRENNEMAN irreparable harm, injury and damage for which it has no adequate remedy at law unless this party is enjoined. WHEREFORE, Defendant Howard Wagenheim requests this Court to deny Plaintiff relief, dismiss Plaintiff's complaint with prejudice and enter judgment in his favor together with costs and attorney's fees. 21. The averments of Paragraphs 1 through 20, inclusive, of this Answer are incorporated by reference herein. 22. Denied. It is denied that Paragraph 5 of the Agreement provided specifically as set forth in Paragraph 22 of Plaintiff's Complaint. 23. Denied. Paragraph 23 of Plaintiff's Complaint contains an unwarranted and erroneous conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that this party owed any duty of loyalty to Office Works. 24. Denied. Paragraph 24 of Plaintiff's Complaint contains a series of unwarranted and erroneous conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.p. 1029(d). To the extent a response is necessary, it is denied that this party breached any duty to Office Works, owed any duty to Office Works, breached the -7- ;"".,~., " "",.".-.~.,;~~"".",,...w>,,"..;_....,. ,,,,>>,,....,.,; '7,l"~!,'",'-""',l::,~.,.,,;:,.,.,,~,,~:i>t LAW O"ICC:. SNELDAtCER a BRENNEMAN Agreement or engaqed in unfair competition by any method or means specifically, but not limited to, those alleged by Plaintiff. 25. Denied. Paragraph 25 of Plaintiff's Complaint contains a series of unwarranted and erroneous conclusions of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. l029(d). To the extent a response is necessary, it is denied that this party breached any fiduciary duty owed to Office Works, breached the Agreement or that Office Works has been and will be irreparably damaged unless this party is enjoined by this Court. WHEREFORE, Defendant Howard Wagenheim requests this Court to deny Plaintiff relief, dismiss Plaintiff's Complaint with prejudice and enter judgment in his favor together with costs and attorney's fees. 26. The averments of Paragraphs 1 through 25, inclusive, of this Answer are incorporated by reference herein. 27. Denied. After reasonable investigation, this party is without sufficient knowledge or information to form a belief as to the truth of the averments contained in Paragraph 27; therefore, same are denied and proof thereof demanded. 28. Denied. It is denied that this party was familiar with the terms and conditions of Office Works' existing and prospective contractual relationships. To the contrary, this -8- LAW O,..ICC. SNELDAKER It BRENNEMAN party was unaware of any such terms or conditions. 29. Denied. It is denied that Boise in any way solicited Wagenheim to accept employment with Boise for the specific purpose of having Wagenheim solicit customers of Office Works which he serviced while employed by Office Works. To the contrary, this party was never solicited by Boise. 30. Denied. It is denied that Boise solicited, hired and encouraged Wagenheim to solicit customers of the Office Works. It is denied that Boise had knowledge of any Agreement between Wagenheim and the Office Works. Finally, it is denied that Boise in any way induced this party to breach the Agreement or that this party in any way breached the Agreement. 31. Denied. It is denied that Wagenheim, without privilege or justification, solicited Office Works' customers as alleged. To the contrary, any action taken by this party was justified and proper for the reasons set forth in New Matter. 32. Admitted in part; denied in part. It is admitted upon information and belief that a letter was sent to Boise October 23, 1995 by Office Works, the content of which letter, being in writing, speaks for itself. It is denied, to the extent it is expressed or implied, that Wagenheim violated the terms of the Agreement or interfered with any longstanding relationships with Office Works' customers. -9- LAW O....ICE. SNELBAKER & BRENNEMAN 33. Denied. Paragraph 33 of Plaintiff's Complaint contains an unwarranted and erroneous conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that this party without justification or excuse, improperly and maliciously interfered with any contractual relationship between Office Works and its customers or violated Paragraph 6 of the Agreement. 34. Admitted, with the qualification that the provision of the Agreement, being in writing, speaks for itself. 35. Denied. Paragraph 35 of Plaintiff's Complaint contains an unwarranted and erroneous conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that this party engaged in non-privileged acts for any improper purposes at the expense of the Office Works. 36. Denied. Paragraph 36 of Plaintiff's Complaint contains an unwarranted and erroneous conclusion of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P, 1029(d). To the extent a response is necessary, it is denied that this party engaged in any unlawful acts or that the Office Works is entitled to any damages. -10- WHEREFORE, Defendant Howard Wagenheim requests this Court to deny Plaintiff relief, dismiss Plaintiff's Complaint with prejudice and enter judgment in his favor together with costs and attorney's fees. 37. The averments of Paragraphs 1 through 36, inclusive, of this Answer are incorporated by reference herein. 38. Denied. It is denied that Office Works sustained any losses or is entitled to recover damages. Further, Paragraph 38 of Plaintiff's Complaint contains unwarranted and erroneous conclusions of law to which no response is required by this party; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied this party breached any "Agreements" or interfered with contractual relations. WHEREFORE, Defendant Howard Wagenheim requests this Court to deny Plaintiff relief, dismiss Plaintiff's Complaint with prejudice and enter judgment in his favor together with costs and attorney's fees. NEW MATTER LAW O,.,.ICU SNELDAKER a BRENNEMAN 39. The parties to the Agreement attached to Plaintiff's Complaint as "Exhibit A" were Howard Wagenheim ("Wagenheim") and Reliable Office Products, Inc, ("Reliable"). -11- UW O''''CI. SNELBAKER II< BRENNEMAN 40. Office Works was never a party to the Agreement between Wagenheim and Reliable. 41. Paragraph 3 of the Agreement provides in part that: The term of employment shall commence on September 11, 1990 and continue indefinitely with each party having the right to terminate the employment upon WRITTEN notice to the other. 42. Reliable never provided Wagenheim with written notice that it was terminating Wagenheim's employment. 43. Office Works never provided Wagenheim with written notice that it or Reliable was terminating Wagenheim's employment. 44. Office Works terminated Wagenheim's employment October 3, 1995. 45. Wagenheim's employment was terminated October 3, 1995 without written notice having been provided to him. 46. All conditions precedent to Office Works' ability to maintain a cause of action under the Agreement have not occurred. 47. Office Works violated the Agreement by failing to provide Wagenheim written notice specified in Paragraph 3 of the Agreement. -12- LAW O"'CE. $NELBAKER 8< BRENNEMAN 48. Wagenheim was employed by Office Works from 1984 to 1989. 49. While employed by Office Works from 1984 to 1989, Wagenheim handled accounts as a sales representative in the central pennsylvania area, which area included the area within a 50 miles radius of Harrisburg. 50. While employed by Office Works from 1984 to 1989, Wagenheim did not have any written agreement respecting any aspect of his employment with Office Works. 51. In June, 1989 Office Works terminated Wagenheim's employment. 52. It is believed and therefore averred that Sherry Shultz, who was employed by the Office Works in 1989, caused Wagenheim's employment to be terminated from Office Works. 53. On or about September 11, 1990 Wagenheim executed the Agreement with Reliable. 54. At the time of executing the Agreement, Wagenheim believed that the Agreement would address the terms and conditions of his employment with Reliable and only Reliable. 55. The Agreement contains no provision, clause or term indicating that it is or was assignable by either Wagenheim or Reliable. -13- LAW O"'CES SNELDAKEA III BRENNEMAN 56. The Agreement contains no provision, clause or term indicating that it is or was binding upon Wagenheim's heirs, successors or assigns or the successors or assigns of Reliable. 57. The Agreement is non-assignable. 58. Had Wagenheim known the Agreement was assignable to Office Works or that Office Works could assume the Agreement or succeed to the rights of Reliable under the Agreement, he would never have executed the Agreement or any employment agreement with Reliable. 59. As a matter of law, Office Works cannot succeed to the rights of Reliable under the Agreement, 60. If Office Works was the assignee of the Agreement, assumed the rights of Reliable under the Agreement or succeeded to the rights of Reliable under the agreement, no consideration therefore was given to Wagenheim, 61. Office Works terminated Wagenheim's employment as a sales representative and retained other sales representatives. 62. Office Works assigned another sales representative or representatives to the accounts handled by Wagenheim. 63. Office Works' decision to terminate Wagenheim was made with the expectation that another sales representative or representatives would generate more sales from those accounts -14- LAW OFFICI:. SNELDAKER II BRENNEMAN than had been generated by Wagenheim. 64. Office Works terminated Wagenheim because it believed Wagenheim was not an asset to its business. 65. While employed by Reliable, Wagenheim competed with Office Works by soliciting customers of Office Works and bidding on contracts bid upon by Office Works. 66. Reliable hired Wagenheim due to Wagenheim's expe~ience, customer contacts and customer relationships he had established in the office furniture, equipment and supply business. 67. Wagenheim brought to his employment with Reliable various customers, contacts and customer relationships which he used for purposes of generating sales for Reliable. 68. Based upon information and belief, former employees of Reliable have entered into employment agreements with Reliable which are substantially similar to the Agreement between Reliable and Wagenheim. 69. Office Works has chosen not to enforce the employment Agreements between Reliable and other employees, but has intentionally and selectively sought to enforce Wagenheim's Agreement. 70. Office Works' failure to give written notice to Wagenheim as required by the Agreement precludes Office Works -15- LAW OFFlCCI SNELDAKER III BRENNEMAN . ",,-' from enforcing the terms of the Agreement. 71. Office Works' claims and requested relief are barred by the doctrine of unclean hands. 72. Office Works is equitably estopped from enforcing the Agreement or seeking relief from this Court. 73. Enforcement of the covenants and restrictions applicable to Wagenheim in the Agreement will result in extreme hardship to Wagenheim and his family. 74. Office Works never distributed to Wagenheim any documents or disseminated to him any information concerning office Works' trade secrets or proprietary information, inClUding, but not limited to, customer names, pricing, costs and strategies for seeking, soliciting and maintaining its business. COUNTERCLAIM WAGENHEIM V. OFFICE WORKS 75. The averments of Paragraphs 1 through 74, inclusive, of this Answer are incorporated by reference herein. 76. Office Works materially breached the Agreement by failing to provide written notice of termination to Wagenheim. 77. As a direct, proximate and factual result of Office Works' breach aforesaid, Wagenheim had no notice of his pending -16- LAW o"lcca SNELDAKER 81 BRENNEMAN .- ,..'\.->.........':.,..Y.:.., '.,' "",'" . ....: -- . '.:". ,"'-' . ......' -",~-.,.;.;..__""..."">..","':>"',,:,,""'!",..,~~::1~\.'i1i~"...r.~'~~'I..mllll(w'l ~h,,". termination and was therefore unprepared and unable to prepare for obtaining subsequent employment by the.time of his termination. 78. After Office Works' wrongful termination of Wagenheim, Waqenheim was unemployed to October 9, 1995, during which time he received no compensation or income and lost the opportunity to receive benefits from his employment. WHEREFORE, Defendant Howard Wagenheim requests this Court to enter judgment in his favor and against Office Works in an amount in excess of $800.00. By: ;rc' P. c. Keith O.Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendant Howard Wagenheim Date: December 22, 1995 -17- LAW o....lce. SNELDAKER 110 BRENNEMAN VERIFICATION I verify that the statements made in the foregoing Answer with New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pat C.S. 54904 relating to unsworn falsification to authorities. Date: December 22, 1995 Wagenhe m ~ LAW Ol"l"lcr;. SNELDAKER 8< BRENNEMAN CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certity that I have, on the below date, caused a true and correct copy of the toregoing Answer with New Matter and Counterclaim to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Matthew Guntharp, Esquire Appel & Yost 33 North Duke Street Lancaster, PA 17602 Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 ~&U+Wk- Keith O. Brenneman, Esquire SNELBAKER & BRENNEMAN, P. C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendant Howard Wagenheim Date: December 22, 1995 LAW O"ICU SNELDAKER 8< BRENNEMAN THE OFFICE WORKS, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6599 EQUITY TERM v. HOWARD WAGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendants ANSWER OF DEFENDANT HOWARD WAGENHEIM TO PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION Defendant Howard Wagenheim, by his attorneys, Snelbaker & Brenneman, P. C. files the following Answer to Plaintiff's Petition For Preliminary Injunction: 1. Admitted, with the qualification that the complaint, being in writing, speaks for itself. By way of further answer, Defendant Wagenheim's Answer, New Matter and counterclaim are incorporated by reference herein. 2. Denied. It is denied that a correct copy of the Complaint is attached to the Petition. By way of further answer, Defendant Wagenheim's Answer, New Matter and counterclaim are incorporated by reference herein. 3. Denied. Paragraph 3 of Plaintiff's petition sets forth unwarranted and erroneous conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d); therefore, same is deemed to be denied, To the extent a response is necessary, it is denied that Wagenheim violated the terms and conditions of any employment agreement with Office Works or Imisappropriated or improperly used confidential information and trade secrets of Office Works, for the reasons set forth in Defendant Wagenheim's Answer, New Matter and Counterclaim, the averments of which are incorporated by reference herein. The averments of the Affidavit of Carlton L. Miller are likewise denied as if set forth herein and denied in their entirety for the reasons incorporated hereinabove. Finally, it is denied that Wagenheim at any time entered into an Employment Agreement with Office Works. 4. It is admitted only that counsel for Office Works sent a letter to Wagenheim dated October 23, 1995, the contents of which letter, being in writing, speak for themselves. 5. Denied. Paragraph 5 of Plaintiff's Petition contains unwarranted and erroneous conclusions of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, the averments of Wagenheim's Answer, New Matter and Counterclaim filed in this action are incorporated by reference herein. 6. Denied. It is denied that Wagenheim with the LAW Ol"l"lcr:a SNELDAKER 8< BRENNEMAN encouragement of Boise Cascade Office Products, Inc., solicited or sold "similar products and services" to customers of Office Works, for the reasons set forth in Wagenheim's Answer, New Matter and Counterclaim filed in this action, the averments of which are incorporated by reference herein. -2- 7. Denied. Paragraph 7 of Plaintiff's Petition contains unwarranted and erroneous conclusions of law to which no response is required by this party pursuant to Pa.R.C.p. lU~~(d). To the extent a response is necessary, it is denied Wagenheim violated any provision of an Employment Agreement with Office Works, breached any fiduciary obligation owed to Office Works or was a former employee of Office Works for the reasons set forth in Wagenheim's Answer, New Matter and Counterclaim filed in this action, the averments of which are incorporated by reference herein. 8. Denied. It is denied that Plaintiff is entitled to injunctive relief or that it will suffer irreparable harm, injury or damage or immediate and irreparable harm, injury or damage for which it has no adequate remedy at law for the reasons set forth in Wagenheim's Answer, New Matter and Counterclaim filed in this action, the averments of which are incorporated by reference herein. 9. Denied. It is denied that Wagenheim will not suffer injury if the preliminary injunction is granted. To the contrary, the grant of an injunction will cause immediate financial injury to him and his family, which family depends on him for support. 10. Denied. Paragraph 10 contains unwarranted and LAW O'F.en SNELDAKER conclusions of law which is It erroneous to no response required by BRENNEMAN -3- . . . . this party pursuant to Pa.R.C.P. 1029(d); therefore, same is deemed to be denied. WHEREFORE, Defendant Howard Wagenheim requests this Court to deny Plaintiff's request for a Preliminary Injunction and enter judgment in his favor, together with costs and attorney's fees. By: ER & BRENNEMAN, P. C. Date: December 22, 1995 ,Pn~ th O.Brenneman, Esqu re 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendant Howard Wagenheim LAW omen SNILBAKER a -4- BRENNEMAN LAW OPPIC.I SNELDAKER II BRENNEMAN . , . . VERIFICATION , , I verify that the statements made in the foregoing Answer to Petition For Preliminary Injunction are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pat C.S. 54904 relating to unsworn falsification to authorities. Date: December 22, 1995 d Wagenhe m LAW O""'CC. SNELBAKER a BRENNEMAN -~: . . , , . . CERTIFICATE OF SERVICE I, REITH O. BRENNEMAN, ESQUIRE, hereby certity that I have, on the below date, caused a true and correct copy ot the toregoing Answer to Petition For Preliminary Injunction to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Matthew Guntharp, Esquire Appel & Yost 33 North Duke Street Lancaster, PA 17602 Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 ,~~ Keith O. Brenneman, EsqUire SNELBAKER & BRENNEMAN, P. C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendant Howard Wagenheim Date: December 22, 1995 <'......,.,'. ,.f,... 0",' <A",'" '~"_.' ,-.:'. "'A .~~ "- ~4 n_ t: . ."_ ,'.~,<'" , + ',' ._'~ ,. ,-",: '4,-<' , ,(",r.,'.'rt~:;l"-t:.'itj:';lp,t,"':4'..J)'"::,,,,; ~ THB OFFICB WORKS, INC. 601 Gib~on Blvd., Harrisburg, PA 17105, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PBNNSYLVANIA v. CIVIL ACTION - LAW HOWARD WAGENHEIM 5254 Strathmore Drive, Mechanicsburg, PA 17055, and BOISE CASCADE OFFICE PRODUCTS, INC. 3001 Frost Road Bristol, PA 19007, Defendants . . : NO. 95-6599 EQUITY TERM ORDER OF COURT AND NOW, this 'I ~day of January, 1996, upon agreement of all parties, the hearing previously scheduled in this matter for January 4, 1996, is RESCHEDULED to Friday, March 8, 1996, at 9100 a.m., in Courtroom No.5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, William J. Cassidy, Jr., 33 North Duke Street Lancaster, PA 17602 Attorney for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendant Howard Wagenheim Esq. ~~~ t\Y ~.r ~ \~ \V.9~ Thomas J. Williams, III, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant Boise Cascade Office Products, Inc. \i:\'1-1/,l,c:\"" "I~.''''''''' .. '~\,",.I"'rJ ''t.:.t". iJ ,) "",. ..... - ./ .. - c:: ';'; , tcr}'''l'' ......c-.iif v :rc 11~:t J.!d II ';':I'('l~ II. .'0 ,{!i;llCI\(;"LiiC'!;J :;./1 308:iO-Q31'fJ ~ :10 '"" THE OFFICE WORKS, INC. 601 Gibson Blvd., Harrisburg, PA 17105, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I I I I I I I I I : I I : CIVIL ACTION - LAW v. HOWARD WAGBNHBIM 5254 Strathmore Drive, Hechanicsburg, PA 17055, and BOISE CASCADE OFFICE PRODUCTS, INC. 3001 Frost Road Bristol, PA 19,007, Defsndants . . . . NO. 95-6599 EQUITY TERM AND NOW, ORDER OF COURT this ~ tt. day of March, 1996, upon consideration of the attached letter and with the agreement of counsel, the hearing previously scheduled in this matter for March 8, 1996, is RESCHEDULED to Friday, June 21, 1996, at 1:30 p.m., in Courtroom No.5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J William J. Cassidy, Jr., Esq. 33 North Duke Street Lancaster, PA 17602 Attorney for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendant Howard Wagenheim Thomas J. Williams, III, Bsq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant Boise Cascade Office Products, Inc. ...,_,,-\-,1.\ ... 'Ir~\~ :".'^. ",~\) \'.'\ --,. ~. ," _ .. " (\i) I "l r......... },',. ~ \'t'. \\\.., ~ .j ; . ,,J.. ~ 'I" l" I-(:)\..;-)~.~,{j~ \~ .....to. M,~'~',;J :rc ~~eL.3/8/9"" Ai'- IHP-or,-l99b 11110 -.. HPPEL ~ ','OST 717 .2?~ 9781 P,ClJ,? 00: " , ~"........ H""'''V. vos" ,.....~w~ IOHHL '''~ M....'" " ttO\IIA"" wa,Ll..MIIIl Melton..... WILUA... ~ CAaGIO....,. OI'n"" A"" ..... TTHlW Q OUNTt4A"" Pll'P1 M ICMANNAUEA ~ 0 VAN.." CL....O U"2Q.HIK OAV'O W MUll"'''' lAW OFTIcw.~ AI"PEL & YOST THIRTV_TtiRe.E NOMnt QUt<t' ,TltEI:T LANCASTER. PIENNSYLVANIA 11.01 ~"" ...u. -....,.... "MMtW."Y.M.ll""-."" MI~L" "AIheI. U'.'.lttlJ ornte AT..e... ttOI.&.ANQ, ~A ,., CA" MAIN .TftI:&' 1'.nM04_'" OffICe AT 'TRA~ itA .III"" ......,., I'''&IT Inn..,.,.,. OlI'rlCC AT W"""YVIUIE. ... :KIll"" ".n 1lftCc:' I"" ,.,....)." Of'rICC .. l' IE,....'" A. .... III I." .....W'THCL'f "",)>>:-,,"4 ell" IMOI" FAX 17111 r.7JUII' March 7, 1996 01 COUNHL PA....' .......,...... ~ .....,uJtI~MR VIA F ACSIMILF. 240.6462 The Honorable J, Wesley Oler, Jr. Courthouse Court of Common Pleas of Cumberl3nd Counly 1 Courthouse Squnre Carlisle, PA 17013-3387 RE: The Office Works, Inc. V. Howard Wagenhcim and Bois~ CllScade Office Producls,Inc. No. 95-6599 Equity - Cumberland County C.C.P, Dear Judge Oler: TIlis is 10 cOnfiml thatth.: Hearing scheduled for Friday, March 8, 1996 ill conneclion wilh lhe above-referenced case has been continucd by agreement of Counsel. II is my undersllInding thalllle Hearing will be resch~duled to a dale certain. Very truly yours, \...V Willillm 1. Cns!1 WJCjr:dmh 7834 30 {'~: Keith 0, BrelUlemlln, Esq, (via facsimilc) TIlolllas J, Willinms. Esq. (via facsimile) Chris Rocke Sherry Schultz Carlton L, Miller MAR - 7 1996 ~ TOT.,!. p. (oJ:' THB OFFICE WORKS, INC. I 601 Gibson Blvd., I Harrisburg, PA 17105, I Plaintiff I I V. I I HOWARD WAGENBEIM I 5254 Strathmore Drive, I Mechanicsburg, PA 17055, and I BOISE CASCADE OFFICE : PRODUCTS, INC. I 3001 Frost Road I Bristol, PA 19007, I Defendants I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-6599 EQUITY TBRM AND NOW, this l' ORDER OF COURT (i ~day of June, 1996, upon relation of Thomas J. Williams, III, Esq., that the parties have reached an agreement in the above matter, the hearing previously scheduled for June 21, 1996, is CANCELLED. BY THE COURT, J We William J. Cassidy, Jr., Esq. 33 North Duke Street Lancaster, PA 17602 Attorney for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendant Howard Wagenheim Thomas J. Williams, III, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant Boise Cascade Office Products, Inc. :rc ~~~115/91,. .J,f', . AlED-OFFICE OF THE PROTI'ONOTMlY 96 JUN I 0 PH 31 16 CUMu:::PJJ~..,Ll WlMIY PENNSYLVANIA .' , ~'. ..... , , l' ,,; -, ~ ;:.L" ..', , ':. i (I, ".'~ ,~) ,.,,!,.,- .,. - LAW O".ICr. SNEL8AKIR. BRENNEMAN a SPARE THE OFFICE WORKS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6599 EQUITY TERM v. . . . . . . . . . . HOWARD WAGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendant . . PRAECIPE TO THE PROTHONOTARY: Please mark the counterclaim asserted by Defendant Howard Wagenheim against plaintiff, The Office Works, Inc. in the above matter settled, discontinued and withdrawn. SNELBAKER, BRENNEMAN & SPARE, P. C. By: ki~~ Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendant Howard Wagenheim Date: February 18, 1997 , ~,. LAW O"ICle SNELBAKER. BRENNEMAN a SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing praecipe to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS For,LOWS: Thomas J. Williams, Esquire Martson, Deardorff, Williams & Otto, P. C. 10 East High Street carlisle, PA 17013 William J. Cassidy, Jr., Esquire Appel & Yost 33 North Duke Street york, PA 17602 k{~ Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 West Main Street P. o. Box 318 Mechanicsburg, PA 17055 (7l7) 697-8528 Attorneys for Defendant Howard wagenheim Date: February 18, 1997 ~ ..:r ::: t -" ~9 .. ';~ . N :J~ ~ 6 :c: --)~ ~ CI.. ...,~ () (") L'~ ~": co ",'\- f) 'i;) c. IZ V) U:ltl ,,'-, t::) .iid:i P\- w 'lit: [._C .~~I a.. u... ::i ~) r- a CJ'I .... -" ~ ~ "4 ':l:1 ~~ - ~ <:) - ,__ C>~'i" "",,,,,,,,-.,,,,,.',,-_._..... .~<~.". ._j,;-/i- ....""'t~r~"" William J, C' r. Attorney I.D. No, 317 Attorneys for The Office Works,lnc, 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE OFFICE WORKS, INC" Plaintiff, vs, No, 6599-1995 Equity Tenn HOWARD W AGENHEIM and BOISE CASCADE OFFICE PRODUCTS, INC., Defendants, PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned case filed by The Office Works, Inc. against Howard Wagenheirn and Boise Cascade Office Products, Inc. as settled, discontinued and withdmwn, APPEL & YOST LL/' By: i' .., :~;i'.;J,"'" , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW THE OFFICE WORKS, INC" Plaintiff, vs, No, 6599-1995 Equity Term HOWARD W AGENHEIM and BOISE CASCADE OFFICE PRODUCTS,INC" Defendants, CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Praecipe was served by first class mail, postate prepaid, to the following: Keith 0, Brenneman, Esq, Snelbaker & Brenneman, P,C, 44 West Main Street P,O,Box318 Mechanicsburg, P A 17055 Thomas J, Williams, Esq, Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 William J, assidy, Jr, Attorney I.D. No, 31724 Attorneys for The Office Works, Inc, 33 North Duke Street Lancaster, PA 17602 (717)394-0521 By: Dated: "?Jl1/Cf7 , I 2 [;: "J ~ ..:l ,.,: ., :_i~ to" r, c": :';~~~ ~'J; ~ I.; .),~ I '~ r~-4 .l...., u.. ~F ;0;: t/") ~" v) .:... I :J% ". f'it,5 _I" r,: U::', 110:: '\'"," r- , ' ~$ - :5 I'. r- 0 c.~ U , ~ . .,