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NATIONAL RISK MGMT. v. BRAMWELL

March 31, 1993

NATIONAL RISK MANAGEMENT, INC. AND NATIONAL RISK MANAGEMENT CONSULTING, INC.
v.
DAVID G. BRAMWELL, MARTIN D. RAKOFF, A.V. CONSULTANTS, INC., CONSOLIDATED RISK SERVICES, INC., COMPREHENSIVE BENEFITS SERVICES CO., INC., DENNIS RYAN, ANDRE DUGGIN, RUSSELL NAYLOR, AND JOHN WOODS



The opinion of the court was delivered by: CLARENCE C. NEWCOMER

 Newcomer, J.

 March 31, 1993

 Plaintiffs in their Amended Complaint make claims against various defendants for Copyright infringement, Breach of Contract, Breach of Fiduciary duty, Trade Secret infringement, and Tortious interference with Contract. *fn1" The case is before me on a Motion by the plaintiffs for a Permanent Injunction and for damages suffered.

 After a non-jury trial in the above captioned case, and after consideration of the arguments and submissions of counsel, the court enters the following Findings of Fact and Conclusions of Law.

 I. Findings of fact:

 A. The parties:

 1. Plaintiff, National Risk Management, Inc. (hereinafter "NRM, Inc.") is a Delaware corporation with its principal place of business located at 1288 Valley Forge Road, Valley Forge, Pennsylvania.

 2. Plaintiff, NRM Consulting, Inc. (hereinafter "NRM Consulting") is a Pennsylvania corporation with its principal place of business located at 1288 Valley Forge Road, Valley Forge, Pennsylvania, 19481. Plaintiffs, NRM, Inc. and NRM Consulting, are primarily in the business of marketing a self-funded workers compensation self-insurance program.

 3. Defendant, David G. Bramwell (hereinafter "Bramwell") is a citizen and resident of the commonwealth of Pennsylvania residing at 431 Hill Crest Avenue, Glenolden, Pennsylvania, 19036.

 4. Defendant, Martin D. Rakoff (hereinafter "Rakoff") is a citizen and resident of the Commonwealth of Pennsylvania residing at 104 Lehigh Road, Coatesville, Pennsylvania.

 5. Defendant, Comprehensive Benefits Service Company, Inc. (hereinafter "CBSC") is a Pennsylvania Corporation with its principal place of business located at 740 East Lancaster Pike, Exton, Pennsylvania, 19341. CBSC is a wholly owned subsidiary of Employee Benefits Plans, Inc. (hereinafter "EBP"), Minneapolis, Minnesota. CBSC/EBP is in the business of marketing employee benefit plans which did not include self-funded workers compensation self-insurance programs.

 6. Defendant, A.V. Consultants, Inc. (hereinafter "A.V.") is a Pennsylvania corporation with its principal place of business located at 740 E. Lancaster Pike, Exton, Pennsylvania.

 7. Defendant, Consolidated Risk Services, Inc. (hereinafter "CRS") is a Pennsylvania Corporation with its principal place of business located at 740 E. Lancaster Pike, Suite 160, Exton, Pennsylvania.

 8. At all times material to Plaintiffs' complaint and until August 23, 1992, Dennis Ryan, Esquire (hereinafter Ryan) was Chief Operating Officer of CBSC/EBP. Commencing on or about August 24, 1992, Ryan became an employee/officer of A.V. holding the title of President. At all times material hereto, Ryan has been a 2% shareholder of A.V.

 9. At all times material to Plaintiffs' Complaint and after August 4, 1992, Ryan has also been an investor/shareholder of Defendant, CRS. Ryan also holds the title of President of CRS.

 10. At all times material to Plaintiffs' Complaint and until November of 1992, A.V. and CBSC/EBP conducted business out of Suite 200, 740 East Lancaster Pike, Exton, Pennsylvania.

 11. Beginning May 20, 1991 to the present, John Wood has been the Vice President of Administration for CBSC/EBP.

 12. James Oakley is the majority shareholder of NRM, Inc and NRM Consulting.

 B. Bramwell and Rakoff are hired:

 13. Beginning July 1, 1986 and continuing until December 8, 1988, Defendant Bramwell was employed by NRM, Inc. Beginning January 2, 1990 and continuing until July 8, 1992, Defendant Bramwell was re-employed by NRM.

 14. Beginning June 1, 1988 and continuing until July 17, 1992, Defendant, Rakoff, was employed by NRM, Inc. as a marketing manager.

 15. Both Bramwell and Rakoff were employed in positions of trust and confidence with plaintiff corporations.

 16. Neither Bramwell nor Rakoff were employed by plaintiff corporations pursuant to valid written employment contracts.

 17. After Bramwell began employment he was presented with a draft of an employment contract by Paul Luckman, Esquire, who was an employee of NRM. Bramwell reviewed the draft and advised Luckman that the draft was inconsistent with the terms of his agreement with Oakley. The agreement contained a restrictive covenant which had not previously been discussed or agreed to by Bramwell. Bramwell never signed the agreement. *fn2" No further action was taken as to the agreement and it was never signed.

 18. Prior to commencing employment in June of 1988, Rakoff met with Oakley and agreed upon the terms and conditions of his employment. Sometime after he reported to work, Rakoff was presented with a draft of an employment agreement to review. He had some discussions with Oakley and a draft was partially marked up. Oakley agreed to make the changes Rakoff had suggested on the draft. However, there was no further follow-up and the draft was never signed.

 19. Had defendants signed the employment contracts in question, the contracts would be unenforceable as they were presented for signature after commencement of employment and lacked proper consideration.

 C. A failed attempt at a joint venture:

 20. In or about December of 1991, representatives of CBSC/EBP met with representatives of NRM, Inc. to discuss the feasibility/possibility of the two companies becoming involved in a joint venture.

 21. Sometime in the spring of 1992 another meeting was held at which Oakley was present along with Rakoff and Ken Shenkle, another employee of NRM, Inc. Mr. Wood was present on behalf of CBSC. Edward Palmer of the Palmer Insurance Agency also attended the meeting.

 22. Immediately prior to this second meeting, Edward Palmer suggested to Ken Shenkle that CBSC/EBP might desire to purchase NRM, Inc. Ken Shenkle advised Edward Palmer that NRM, Inc. was not for sale.

 23. CBSC/EBP and NRM, Inc. exchanged information regarding their respective businesses with respect to the joint venture. This information included at a minimum NRM's Proposal Book, which explains the essence of the self-Funded Program and also contains a non-exclusive list of NRM's clients and Producers who serve as references to prospective clients.

 24. During one of the meetings between the two companies Rakoff presented NRM, Inc.'s standard slide presentation used as a sales pitch to prospective clients in presenting and explaining their product.

 26. An additional meeting was to be scheduled between Andrea Mathias of CBSC/EBP and Susan Rose of NRM, Inc. The purpose of this meeting was to discuss the technical aspects of the program and to exchange computer information. This additional meeting never took place.

 27. After some time had passed and no further meetings were scheduled, the discussions between the two companies broke down as both sides seemed to grow less interested in the joint venture.

 D. Opportunity knocks and Bramwell is fired:

 28. Dennis Ryan, who was involved in the discussions on behalf of CBSC, concluded on his own that the joint venture concept was of interest and he set out to find investors who might be interested in the concept being discussed by CBSC and NRM.

 29. Ryan sought investors and entered into discussions with Bramwell and Rakoff about creating a company that would allow Rakoff and Bramwell to carryout the 24 hour a day coverage that was the subject of the proposed joint venture. Ryan's actions in this respect were not taken on behalf of CBSC.

 30. In early July, 1992, Dolores O'Donnell of NRM, Inc. advised Oakley that she had learned that Bramwell was interviewing for employment with another company. Oakley requested that O'Donnell instruct Bramwell to meet with him on the issue.

 31. Bramwell met with Oakley and confirmed that he was interviewing with another company. Bramwell also mentioned that Rakoff had likewise been interviewing with the same company. That same evening Oakley telephoned Rakoff. Oakley advised Rakoff that he was aware he was interviewing for a job along with Bramwell.

 32. Rakoff and Bramwell were instructed to meet with Mr. Oakley at NRM's offices. At the meeting Oakley explained his displeasure with Bramwell and Rakoff's actions and instructed them to see if any other officer could support their actions or would stand behind them in their efforts to keep their jobs.

 33. Rakoff was able to find support from Ken Shenkle and he convinced Oakley not to terminate his employment.

 34. Bramwell was not as fortunate. Bramwell was unable to find any support among the other officers of the company. Bramwell's employment was terminated after further discussions with Oakley.

 35. Ms. Rose met individually and in committee meetings with the other officers of Plaintiff corporations with regard to Rakoff's actions.

 36. After attending several hours of committee meetings, Ms. Rose informed Mr. Rakoff of the Plaintiff corporations' position with regard to his continuing employment at NRM, Inc.

 37. Ms. Rose advised Mr. Rakoff that the company was placing him on a one year monitoring period.

 38. During this one year period, a new employee would be hired and trained by Rakoff for Rakoff's position. If at the end of the one year period Rakoff had performed satisfactorily, the officers would reconvene to determine whether or not Rakoff would be terminated.

 39. Rakoff accepted the companies' proposal.

 40. On July 15, 1992, after the new arrangement was in place, Ms. Rose witnessed Mr. Rakoff give a presentation on NRM, Inc.'s behalf.

 E. The Aliquippa Hospital incident and Rakoff is fired:

 41. In the summer of 1992, Rakoff marketed the NRM, Inc. self-funded workers compensation self-insurance program to Mike Winarski, the vice-president of finance of Aliquippa Hospital.

 43. Rakoff presented the contractual documents between NRM, Inc. and Aliquippa Hospital to Mike Winarski.

 44. In the end of June, 1992, Mike Winarski returned the signed contract documents to Rakoff.

 45. Rakoff retained the signed contract documents in his possession and did not advise anyone at NRM, Inc., other than Bramwell, that he possessed the signed contracts.

 46. On July 17, 1992, Rakoff telephoned NRM, Inc. and advised the company that one of his parents was ill and that he had to go to New York to visit.

 47. Although Rakoff's parent was ill, he did not go to New York.

 48. On July 17, 1992, Rakoff reappeared at Aliquippa Hospital and presented to Mike Winarski another set of unsigned contract documents for a self-funded workers compensation self-insurance program.

 49. Rakoff stated to Winarski that he had started his own business and that the documents were similar to the ones Winarski signed with NRM, Inc., except that Rakoff wanted Winarski to sign these contract documents with Rakoff's new company.

 50. Winarski took the documents from Rakoff and told him he would review them.

 51. After Rakoff left Winarski's office, Winarski telephoned his insurance agent. Aliquippa had used in the past as well as in conjunction with NRM, Inc.

 52. The agent telephoned Jim Oakley and advised Mr. Oakley what Mr. Rakoff had done.

 53. Mr. Oakley telephoned Mr. Winarski to apologize and offered to fly immediately to Aliquippa (located outside Pittsburgh near Ohio) with other officers of NRM, Inc. to clear up the problem.

 54. Mr. Winarski suggested Mr. Oakley come to Aliquippa on July 20, 1992. Mr. Oakley and other officers flew to Aliquippa and met with Mr. Winarski at 7:00 a.m. on Monday, July 20, 1992.

 55. The night of July 17, 1992, Mr. Oakley reached Rakoff by phone. The Aliquippa incident was discussed and Rakoff acknowledged the occurrence as described by Mr. Winarski.

 56. The night of July 17, 1992, Mr. Oakley terminated Rakoff from the employ of NRM, Inc.

 57. The documents presented to Mike Winarski on July 17, 1992 were prepared by Bramwell for Rakoff to take to Aliquippa. The letterhead identifying the documents as "A.V. Consultants" was supplied to Bramwell and Rakoff by Dennis Ryan.

 58. Bramwell and Rakoff consummated their negotiations with the investor group and executed contracts of employment on or about July 21, 1992. The contracts called for them to commence their new employment on or about ...


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