HomeMy WebLinkAbout2012-3043
CARLOS G. GARCIA,
: IN THE COURT OF COMMON PLEAS OF
Plaintiff,
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
DAWOOD ENGINEERING, INC.,
:
BONY R. DAWOOD,
:
M. SHEIKH DAWOOD,
:
YASMIN DAWOOD, PAUL WHIPPLE,
:
THOMAS C. ROAWADER, and
:
RONALD A. CARROLA,
:
Defendants.
: NO. 2012-3043 CIVIL
IN RE: PLAINTIFF’S PRELIMINARY OBJECTIONS TO
DEFENDANT’S ANSWER, NEW MATTER, and COUNTERCLAIM
BEFORE HESS, P.J., and EBERT, J.
OPINION and ORDER
Before the court are the preliminary objections of Plaintiff Carlos G. Garcia filed to
Defendants’ Answer, New Matter, and Counterclaim. (Plaintiff’s Preliminary Objections to
Defendants’ Answer, New Matter, and Counterclaim, filed Jul. 2, 2012). Plaintiff’s Complaint
arises out of an employment and wage dispute between the parties. Defendants’ Counterclaim
asserts a claim against Plaintiff alleging that Plaintiff “removed certain confidential information
from Defendant Dawood Engineering’s offices, for his own use”; that Plaintiff “shared
confidential information of Dawood Engineering with his new employer and with others, to
derive personal benefit for Plaintiff”; that Plaintiff “was aware that such information was
confidential and that he had a duty to protect the confidentiality of Dawood Engineering’s
information”; and that “[w]ith purposeful and intentional action, Plaintiff misappropriated such
confidential information for his own benefit and in order to harm Defendant Dawood
Engineering.” (Complaint, filed May 15, 2012) (Answer, New Matter, and Counterclaim, filed
Jun. 12, 2012). Defendants’ Counterclaim has been preliminarily objected to in the form of a
demurrer and by way of a motion to dismiss for reasons of insufficient specificity. (Plaintiff’s
Preliminary Objections to Defendants’ Answer, New Matter, and Counterclaim, filed Jul. 2,
2012).
The factual allegations in this case may be summarized as follows: Plaintiff Carlos G.
Garcia was an employee of Defendant Dawood Engineering, Inc. from January 1, 1997 to
January 20, 2012. While in Defendant’s employ, Plaintiff was assigned the title of Manager –
Traffic Engineering Services, and in that capacity was responsible for, inter alia, the management
of the department’s profit center, including business development, marketing proposals,
project management/coordination, client maintenance/liaison, invoicing, scheduling, staff
supervision/mentoring, traffic engineering analysis, peer reviews, roadway design and expert
testimony. Additionally, Plaintiff was responsible for the review and design of highway
occupancy permit plans, traffic impact studies, and the completion of maintenance of traffic
control plans, and more. Plaintiff’s Complaint alleges that the parties entered into an
employment agreement, a portion of which was attached to Plaintiff’s Complaint at Exhibit A,
which, according to Plaintiff, entitled him to be paid for any and all remaining accrued leave
time balances upon his termination but with the condition that he provide two weeks’ notice of
his intention to terminate employment. Plaintiff’s Complaint avers that Defendants were
provided with 17 days’ notice prior to Plaintiff’s termination, and that he was eligible to receive
payment for an accrued leave balance of approximately 192.25 hours of unused leave time.
Plaintiff’s Complaint further alleges that, pursuant to the Pennsylvania Wage and
Collection Law, 43 Pa.C.S.A. § 260.1, Plaintiff was entitled to payment for his accrued leave
time not later than the next regular pay date of Defendant, that the succeeding regular pay date
following Plaintiff’s termination was January 27, 2012, and that Plaintiff was not paid the
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accrued leave time as required by the statute. Plaintiff’s Complaint avers that, on February 10,
2012 and February 24, 2012, Plaintiff did receive payment for his accrued leave time in the
amounts of 80 hours and 64 hours, respectively. Plaintiff’s Complaint alleges that he has not
received payment for the remaining 48.25 hours, and that he is owed approximately $2,456.00.
For this reason, Plaintiff’s Complaint requests payment for the balance of his accrued leave time
and liquidated damages in an amount equal to twenty-five percent of the wages due, or five
hundred dollars, whichever is greater, in accordance with 43 Pa.C.S.A. § 260.10. Additionally,
Plaintiff requests the payment of attorney’s fees pursuant to 43 Pa.C.S.A. § 260.9(a)(f).
On June 12, 2012, Defendants filed an Answer, New Matter, and Counterclaim in
response to Plaintiff’s Complaint, denying Plaintiff’s entitlement to the remaining balance of
unpaid accrued leave time, and asserting the following counterclaim against Plaintiff:
45. During Plaintiff’s employment with Defendant Dawood Engineering he
learned confidential information concerning Dawood Engineering, including
customer names, pricing lists, active projects of Dawood Engineering and projects
for which Dawood Engineering was planning to submit bids.
46. When Plaintiff left the employ of Dawood Engineering, he removed certain
confidential information from Defendant Dawood Engineering’s offices, for his
own use.
47. Defendant Dawood Engineering believes and avers that Plaintiff shared
confidential information of Dawood Engineering with his new employer and with
others, to derive personal benefit for Plaintiff.
48. Plaintiff was aware that such information was confidential and that he had a
duty to protect the confidentiality of Dawood Engineering’s information.
49. With purposeful and intentional action, Plaintiff misappropriated such
confidential information for his own benefit and in order to harm Defendant
Dawood Engineering.
50. Plaintiff is liable for the actual damages suffered by Dawood Engineering
because of the misappropriation of confidential information by Plaintiff.
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51. Because of Plaintiff’s willful and intentional acts to harm Dawood
Engineering, he is also liable for punitive damages.
52. Plaintiff has contacted Dawood Engineering customers and attempted to
divert work away from Dawood Engineering.
53. Plaintiff has used confidential information that he learned while working for
Dawood Engineering to bid on engineering jobs, to the disadvantage of Dawood
Engineering and for his own personal benefit.
54. Plaintiff has contacted Dawood Engineering employees and has urged them
to terminate their employment with Dawood Engineering, for the purpose of
harming Defendant Dawood Engineering.
(Answer, New Matter, and Counterclaim, ¶¶ 45-54, filed Jun. 12, 2012).
The foregoing constitutes the sum total of all averments contained within Defendants’
Counterclaim. Plaintiff has filed the instant preliminary objections alleging that Defendants’
Counterclaim should be dismissed for reasons of legal insufficiency and insufficient specificity
of a pleading.
Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be
filed by any party to any pleading on several grounds, including the following:
(2) Failure of a pleading to conform to law or rule of court . . .;
(3) Insufficient specificity in a pleading;
(4) Legal insufficiency of a pleading (demurrer).
Pa.R.C.P. 1028(a)(2), (3), (4).
The standard of review for preliminary objections in this Commonwealth is well-settled.
Preliminary objections are properly sustained only when, “based on the facts pleaded, it is clear
and free from doubt that the complainant will be unable to prove facts legally sufficient to
establish a right to relief.” Mazur v. Trinity Area School Dist., 599 Pa. 232, 240-41, 961 A.2d 96,
101 (2008) (internal citations omitted). In considering preliminary objections, “all well-pleaded
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allegations and material facts averred in the complaint, as well as all reasonable inferences
deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 136 Pa.
Commw. 629, 638, 584 A.2d 403, 407 (1990). However, the trial court “need not accept as true
conclusions of law, unwarranted inferences from fact, argumentative allegations, or expressions
of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa.Cmwlth. 1995). An
appellate court will only reverse a trial court’s ruling on a preliminary objection when “there has
been an error of law or abuse of discretion.” Excavation Technologies, Inc. v. Columbia Gas Co.
of Pa., 2007 PA Super 327, ¶ 5, 936 A.2d 111, 113.
Initially, we address Plaintiff’s preliminary objection seeking the dismissal of
Defendants’ Counterclaim for reasons of insufficient specificity.
Pennsylvania is a fact pleading jurisdiction. Foster v. UPMC South Side Hosp., 2010 PA
Super 143, 2 A.3d 655, 666 (quoting Lerner v. Lerner, 2008 PA Super 183, ¶ 12, 954 A.2d 1229,
1235). The plaintiff must state the material facts on which a cause of action is based “in a
concise and summary form.” Pa.R.Civ.P. 1019(a). It is well established that a plaintiff’s
complaint must provide sufficient factual averments in order to sustain a cause of action.
Feingold v. Hendrzak, 2011 PA Super 34, 15 A.3d 937, 942. The complaint must “not only give
the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but the
complaint must also formulate the issues by summarizing those facts essential to support the
claim.” Id. (internal citations omitted). Moreover, the complaint must be sufficiently specific so
that the opposing party will know how to prepare his defense. Commonwealth ex rel. Pappert v.
Pharmaceutical Products, Inc., 868 A.2d 624 (Pa.Cmwlth. 2005). Our Supreme Court has held
that “the lower court has broad discretion in determining the amount of detail that must be
averred since the standard of pleading set forth in Rule 1019(a) is inapplicable of precise
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measurement.” United Refrigerator Co. v. Appplebaum, 410 Pa. 210, 213, 189 A.2d 253, 255
(1963).
In this case, we are unable to determine even the cause of action which Defendants have
attempted to assert in their Counterclaim. In the pleading, no mention is made of a
confidentiality agreement, non-competition agreement or any type of covenant between parties
which would indicate the existence of a duty on behalf of Plaintiff to refrain from utilizing and/or
disclosing any information obtained while in the employ of Defendants. At best, the only a
glimmer of a cause of action which we have been able to detect is an attempt to assert a claim
under Pennsylvania’s Uniform Trade Secrets Act (PUTSA), 12 Pa.C.S.A. § 5301 et seq.
However, even if so pled, Defendants’ Counterclaim is woefully insufficient.
In order to state a cause of action under the Uniform Trade Secrets Act, a plaintiff must
establish that the defendant “misappropriated” a “trade secret”, as those terms are defined in 12
Pa.C.S.A. § 5302. See 12 Pa.C.S.A. 5304 (“. . .a complainant is entitled to recover damages for
misappropriation. Damages can include both the actual loss caused by misappropriation and the
unjust enrichment caused by misappropriation that is not taken into account in computing actual
loss.”). The Uniform Trade Secrets Act provides that the term “misappropriation” includes the
following:
(1) acquisition of a trade secret of another by a person who knows or has reason to
know that the trade secret was acquired by improper means; or
(2) disclosure or use of a trade secret of another without express or implied
consent by a person who:
(i) used improper means to acquire knowledge of the trade secret;
(ii) at the time of disclosure or use, knew or had reason to know that his
knowledge of the trade secret was:
(A) derived from or through a person who had utilized
improper means to acquire it;
(B) acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use; or
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(C) derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its use;
or
(iii) before a material change of his position, knew or had reason to know
that it was a trade secret and that knowledge of it had been acquired by
accident or mistake.
12 Pa.C.S.A. § 5302.
Additionally, the statute provides that a “trade secret” includes the following:
“Trade secret.” Information, including a formula, drawing, pattern, compilation
including a customer list, program, device, method, technique or process that:
(1) Derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from
its disclosure or use.
(2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
12 Pa.C.S.A. § 5302.
Although the concept of a trade secret “is at best a nebulous one,” Van Products Co. v.
General Welding & Fabricating Co., 419 Pa. 248, 258, 213 A.2d 769, 775 (1965), our Superior
Court has held that “[t]he crucial indicia for determining whether certain information constitutes
a trade secret are substantial secrecy and competitive value to the owner.” O.D. Anderson, Inc.
v. Cricks, 2003 PA Super 13, ¶ 23, 815 A.2d 1063, 1070. The courts of our Commonwealth
have generally accepted Section 757 of the Restatement of Torts as the basic outline for trade
secrets law, which provides, in pertinent part, as follows:
A trade secret may consist of any formula, pattern, device or compilation of
information which is used in one’s business, and which gives him an opportunity
to obtain an advantage over competitors who do not know or use it.
Id. (quoting Den-Tal-Ez, Inc. v. Siemens Capital Corp., 389 Pa.Super. 219, 248, 566 A.2d 1214,
1228 (1989)).
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As noted above, a plaintiff must “not only give the defendant notice of what the
plaintiff’s claim is and the grounds upon which it rests, but the complaint must also formulate the
issues by summarizing those facts essential to support the claim.” Feingold, 2011 PA Super 34,
15 A.3d at 942. In this case, however, Defendants have not alleged the material facts on which
a cause of action is based, but instead have simply provided Plaintiff with a shell of cursory
allegations and have included no facts in support thereof. Defendants contend that Plaintiff
“removed” certain confidential information from Defendants’ offices and “shared” that
information with his new employer, yet no mention is made of what that information might be,
nor any damages which may have arisen from the alleged misappropriation of such confidential
information. Moreover, Defendants contend that Plaintiff “contacted Dawood Engineering
customers and attempted to divert work away from Dawood Engineering,” but Defendants have
included no names, contacts, or even prospective customers whom Plaintiff is alleged to have
approached.
Also, as we have noted, Defendants have included no basis upon which Plaintiff would
have been required to refrain from such activity as described in the Counterclaim. Defendants
did not reference or attach a confidentiality agreement, non-compete agreement, or anything of
the sort. For this reason, we have examined Defendants’ Counterclaim under the Uniform Trade
Secrets Act, and similarly find the claim to be lacking in the specificity required. Defendants
make no reference of any trade secrets which may have been misappropriated by Plaintiff, other
than a general belief that “confidential information” was shared with Plaintiff’s new employer.
Clearly, Defendants’ Counterclaim lacks the specificity which would enable Plaintiff to
adequately state his defense. As a result, Plaintiff’s preliminary objection in the form of a motion
to dismiss for reasons of insufficient specificity will be sustained, though Defendants will be
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given leave to amend the pleading if they are able. By granting leave to amend, we give
Defendants the benefit of the doubt and, in doing so, remind counsel of their duties to the court
under Pennsylvania Rule of Civil Procedure 1023.1(c).
For these reasons, the following order will be entered:
ORDER
th
AND NOW, this 9 day of October, 2012, upon consideration of Plaintiff’s Preliminary
Objections to Defendants’ Answer, New Matter, and Counterclaim, and after argument, the
Preliminary Objections of Plaintiff are SUSTAINED in part and OVERRULED in part.
Plaintiff’s second preliminary objection to Defendant’s Counterclaim, insufficient
specificity of a pleading, is hereby SUSTAINED, and Defendants are given 20 days to amend, if
so desired, to plead such claim consistent with the accompanying opinion.
AND FURTHER, Plaintiff’s remaining preliminary objection to Defendants’
Counterclaim is hereby OVERRULED.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Amanda Snoke Dubbs, Esquire
For the Plaintiff
Wayne M. Pecht, Esquire
For the Defendants
:rlm
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CARLOS G. GARCIA,
: IN THE COURT OF COMMON PLEAS OF
Plaintiff,
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
DAWOOD ENGINEERING, INC.,
:
BONY R. DAWOOD,
:
M. SHEIKH DAWOOD,
:
YASMIN DAWOOD, PAUL WHIPPLE,
:
THOMAS C. ROAWADER, and
:
RONALD A. CARROLA,
:
Defendants.
: No. 2012-3043 CIVIL
IN RE: PLAINTIFF’S PRELIMINARY OBJECTIONS TO
DEFENDANT’S ANSWER, NEW MATTER, and COUNTERCLAIM
BEFORE HESS, P.J., and EBERT, J.
ORDER
th
AND NOW, this 9day of October, 2012, upon consideration of Plaintiff’s Preliminary
Objections to Defendants’ Answer, New Matter, and Counterclaim, and after argument, the
Preliminary Objections of Plaintiff are SUSTAINED in part and OVERRULED in part.
Plaintiff’s second preliminary objection to Defendant’s Counterclaim, insufficient
specificity of a pleading, is hereby SUSTAINED, and Defendants are given 20 days to amend, if
so desired, to plead such claim consistent with the accompanying opinion.
AND FURTHER, Plaintiff’s remaining preliminary objection to Defendants’
Counterclaim is hereby OVERRULED.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Amanda Snoke Dubbs, Esquire
For the Plaintiff
Wayne M. Pecht, Esquire
For the Defendants
:rlm