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METTLER-TOLEDO, INC. v. ACKER

November 21, 1995

METTLER-TOLEDO, INC., Plaintiff
v.
TODD R. ACKER, d/b/a PRECISION INSTRUMENT SERVICES, Defendant


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

November 21, 1995

 BACKGROUND:

 Plaintiff Mettler-Toledo, Inc. initiated this diversity action against defendant Todd R. Acker, d/b/a Precision Instrument Services by way of a complaint filed September 28, 1995.

 Plaintiff's complaint was accompanied by a motion for a preliminary injunction. A hearing on plaintiff's request for a preliminary injunction was held on October 25, 1995. Based on the findings of fact and conclusions of law which follow, we find that plaintiff is not entitled to the injunctive relief which it seeks.

 FINDINGS OF FACT

 Four witnesses testified on plaintiff's behalf at the hearing: Alan H. Polackoff; William C. Comiski; Andrew Kovacs III and Charles V. Francis. Defendant testified on his own behalf, as did his wife.

 Based on the testimony presented and the documentary evidence introduced at the hearing, the court makes the following findings of fact:

 1. Mettler-Toledo, Inc. (Mettler-Toledo or the company) is a Delaware corporation with its principal place of business in Worthington, Ohio.

 2. Defendant Acker is an individual residing at RD 1, Box 644E, Shamanamtown Road, Annville, Pennsylvania 17003.

 3. Mettler-Toledo is in the business of selling and servicing state-of-the-art technology precision balances, instruments and systems through the United States.

 4. Mettler Instrument Corporation merged with Toledo, Inc. to form Mettler-Toledo on December 31, 1992.

 5. Mettler-Toledo employs 3,200 employees and has annual gross sales of approximately $ 371,000,000.00. The bulk of its revenue is from sales. Mettler-Toledo services the equipment it sells only as a support to its sales business.

 METTLER-TOLEDO BUSINESS PRACTICES:

 6. Out of its facility in Hightstown, New Jersey, Mettler-Toledo employs approximately 80 service technicians based throughout the United States. Service technicians respond to customers' service needs, by performing, e.g., warranty and repair work, calibration and performance assurance.

 7. Each service technician is assigned an exclusive geographic territory and each is responsible for servicing the Mettler-Toledo equipment in that territory.

 8. Mettler-Toledo provides its service technicians is provided with specialized tools, service software, service manuals, and a spare parts inventory.

 9. Mettler-Toledo's service technicians and its salesmen are its primary interface between it and its customers.

 10. Mettler-Toledo invests time and resources in training and certifying its service technicians.

 11. Mettler-Toledo invests time and resources in marketing its products and services and in compiling useful information on the service needs of its customers, including such information as the names of contact-persons, researchers or end-users within the company, the customer's service plans and needs, when its last annual service was performed, or should be, performed and the fee charged.

 12. Such information is derived from warranty cards filled out and returned by its customers. Customers are given incentives including a free service visit and calibration for returning a completed warranty card. The warranty cards contain such information as the model, serial number, customer name and address. Such information is valuable to Mettler-Toledo in its marketing efforts. When the service technician calls to provide the free service and calibration for returning the warranty card, he has an opportunity to solicit continuing business from the customer.

 13. This information is updated daily and communicated to Mettler-Toledo service technicians to help them successfully market the company's services.

 14. A typical Mettler-Toledo customer has its equipment serviced once a year. Knowing when annual service calls fall due gives Mettler-Toledo is an important competitive advantage.

 15. A typical Mettler-Toledo customer has a number of departments, each of which will is typically autonomous in terms of selecting a precision instrument service technician, and each of which typically has a different contact person responsible for arranging for such service.

 16. Pennsylvania State University is an example of a typical customer. Within the university, there are numerous departments, each of which are dealt with on an individual basis. Some departments are further broken down into different laboratories used by may different researchers. Generally, the researcher, the end-user of the balance, selects the service company. In the course of his employment with Mettler-Toledo, Acker was provided with the names and telephone numbers of all of its end-users in the Harrisburg territory.

 17. Acker was hired by Mettler Instrument Corporation, predecessor to defendant Mettler-Toledo, on October 16, 1987 to work as a field service representative in the Harrisburg, Pennsylvania area. His title was later changed to service technician. He remained employed with the company until his resignation on September 6, 1995.

 18. Acker signed and submitted an employment application containing the following:

 
I further understand that any knowledge whatsoever of a confidential nature which I may acquire as a result of or in connection with my employment shall remain the sole and exclusive property of Mettler Instrument Corporation both during and after termination of my employment.

 19. Acker was assigned to the Harrisburg, Pennsylvania territory and used the information and resources which it made available to him to expand its customer base in that region during the seven years he was with the company.

 20. In 1994, Mettler-Toledo's total annual service revenue from customers serviced by Acker was approximately $ 120,000.00.

 21. Acker earned approximately $ 35,000.00 from during 1994, his last full year of employment. In addition to his salary, he received fringe benefits consisting of medical, dental, prescription, short term disability and long term disability insurance, pension benefits and 401K contributions.

 22. Mettler-Toledo also provided Acker with a company car, provided insurance and maintenance for the car and reimbursed him for all allowable business expenses.

 23. Before he was hired by Mettler-Toledo, Acker had no previous experience in the precision-instrument servicing industry and had no business relationships with any Mettler-Toledo customers.

 24. Acker received approximately 13 weeks of training in servicing Mettler-Toledo products when he began working for the company in 1987. He was trained in the field and introduced to Mettler-Toledo customers by a company service trainer. Acker also received in-house training at Mettler-Toledo's Hightstown facility.

 25. Following his initial training period, Acker could draw upon the experience of more-senior service technicians and seek information from them to learn the servicing business. It takes some time for new-hires to completely learn the business. He also periodically received follow-up training.

 26. All training was done at Mettler-Toledo's expense.

 27. Through Acker, Mettler-Toledo serviced 35% of all Mettler-Toledo balances installed in the Harrisburg territory.

 ACKER'S RESIGNATION

 28. In August, 1995, Acker was offered a job by American Weigh Systems (American Weigh) as a service technician in its analytical division. American Weigh is in the business of servicing large industrial balances and is not in direct competition with Mettler-Toledo in the analytical field.

 29. Acker verbally informed his supervisor at Mettler-Toledo of the offer from American Weigh.

 30. Acker did not accept American Weigh's offer, because he did not want to sign the three-year non-compete agreement it ...


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