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Builder Services Group, Inc. v. Pick

April 9, 2009

BUILDER SERVICES GROUP, INC. D/B/A FUEL SAVERS INSULATION, PLAINTIFF
v.
CURTIS PICK, JAMES SPINA AND PICK ENTERPRISES, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is the plaintiff's motion for a stay pending mediation and arbitration. The motion has been briefed and is ripe for disposition.

Background

Plaintiff Builder Services Group, Inc., d/b/a Fuel Savers (hereinafter "Fuel Savers" or "plaintiff") is in the business of, inter alia, installing insulation. (Compl. ¶ 3). Plaintiff employed Defendant Curtis Pick from April 1, 2005 through August 23, 2008. (Id. at ¶ ¶ 12, 26). Immediately prior to leaving his employment with Fuel Savers, Pick incorporated a business, Pick Enterprises. (Id. at ¶ 27). Plaintiff avers that in connection with his employment with Fuel Savers, Pick executed various agreements that prohibited him from, inter alia, competing with plaintiff for a period of eighteen months within seventy-five miles of plaintiff's business.

When he left the Plaintiff's employ, Defendant Pick indicated that he did not intend to compete with it, but that his intention was to go into the business of waterproofing work. (Compl. ¶ 29). In December 2008, three of plaintiff's employees resigned their positions and began working for Defendants Pick and Pick Enterprises. (Id. at ¶ ¶ 30-31).

Plaintiff asserts that in December 2008 or January 2009, Defendants Pick and Pick Enterprises started to sell and install insulation in direct competition with plaintiff and in violation of Pick's agreements and restrictive covenants. (Compl. ¶ 32). Plaintiff further alleges that Defendants Pick and Pick Enterprises continue to carry on in the business of insulation installation. (Id.).

Defendant James Spina became an employee of plaintiff in 2001. (Compl. ¶ 37). He is the father-in-law of Defendant Pick. (Id. ¶ 12). Defendant Spina's employment with the plaintiff terminated in approximately December 2008. Plaintiff avers that Defendant Spina is working for and/or assisting the activities of Defendant Pick and Pick Enterprises. (Id. at ¶ 53).

Plaintiff asserts that defendants have unlawfully contacted its customers in violation of the agreement resulting in loss of insulation sales and installation by plaintiff. (Id. ¶ 54). As a result, plaintiff has been forced to reduce its bid price for performing work and has lost profits.

Based upon these averments, the plaintiff instituted the instant eight-count complaint. The complaint alleges a breach of proprietary and confidential information and invention assignment agreement against Defendant Pick; breach of confidentiality agreements against Defendants Pick and Spina; breach of release agreement against Defendant Spina; conversion of trade secrets against all defendants; breach of fiduciary duties against defendants Pick and Spina; tortious interference with contract against all defendants; and civil conspiracy against Defendants Pick and Spina.

Plaintiff filed a motion for a temporary restraining order on February 9, 2009 seeking to have the court order the defendants to comply with the various non-compete agreements. This court held a hearing on the motion on February 12, 2009, and the motion for a temporary restraining order was denied on that same day. The court scheduled a preliminary injunction hearing for Monday April 20, 2009 and indicated that the preliminary injunction hearing would be combined with a full trial on the merits.*fn1 The court set a discovery deadline and a deadline for filing briefs on the issue of the preliminary injunction. (Doc. 18).

On March 2, 2009, the defendants answered the complaint. (Doc. 24, 26). Defendant Spina also filed a counterclaim for a declaratory judgment and asserting a breach of contract and violation of Pennsylvania Wage Payment and Collection Law. (Doc. 26). The case proceeded through discovery, and the parties engaged in two discovery telephonic discovery conferences with the court. On April 3, 2009, the plaintiff filed the instant motion to stay the proceeding pending mediation and arbitration. (Doc. 37). In the motion, the plaintiff asserts that each of the defendants agreed that disputes arising out of the employment would be resolved pursuant to the plaintiff's Dispute Resolution Policy. (Doc. 37, ¶ 4).*fn2

As the motion was filed very near to the date set for the hearing on the preliminary injunction, the court ordered expedited briefing. The briefs have now been filed, brining the case to its present posture. Discussion

Plaintiff's motion for a stay will be denied. The Dispute Resolution Policy that it seeks to invoke explicitly excludes "claims for injunctive or equitable relief the [plaintiff] might have against an employee to: enforce non-competition agreements; enforce non-solicitation agreements; protect, directly or indirectly, the Company's trade secret(s), proprietary information, confidential information and other Company property; and protect the Company's business reputation." (Doc. 37-2, Plaintiff's Ex. 1, Dispute Resolution Policy, at 2). These are precisely the claims raised in the instant lawsuit. Thus, the Dispute Resolution Policy does not apply to these claims.

Plaintiff asserts that this provision supports its position that the policy "specifically allows the pursuit of injunctive relief in court in addition to mediation and arbitration of claims." (Pl. Brief at 6). Plaintiff's position is wholly without merit. The policy does not state that court proceedings and the mediation and arbitration of claims are allowed with regard to these claims. It states that the claims are ...


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