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Pnc Mortgage (A Division of Pnc Bank, N.A v. Superior Mortgage Corporation

February 27, 2012


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Plaintiff PNC Mortgage's Motion for Leave to Amend Complaint. (ECF No. 35.) For the following reasons, Plaintiff's Motion is granted in part, and denied in part.


In this unfair competition action between two mortgage companies, Plaintiff PNC Mortgage ("PNC"), successor by merger to National City Mortgage ("National City"), brings numerous claims against Defendants Superior Mortgage Corporation ("Superior"), John Coneys and Marc Pollicino. Coneys and Pollicino were the former managers of National City's Plymouth Meeting, Pennsylvania, and Marlton, New Jersey branches. After PNC and National City merged in late 2008, Plaintiff began to institute structural changes to their Mortgage Division. As part of its restructuring initiatives, Plaintiff centralized the loan processing and underwriting functions into two locations, changed the compensation structure of branch managers such that they no longer would earn commissions on loans they originated, and changed the lending requirements for PHA loans. In mid-2009, around the time that the restructuring initiatives occurred, many branch managers and loan officers in National City's Eastern Division resigned and took employment with competitors.

Coneys and many of the loan officers and assistants in the Plymouth Meeting branch left National City to work for Superior. Pollicino and many of his loan officers and assistants in the Marlton branch also joined Superior. Plaintiff alleges that around the time of their departure from National City, some of the Marlton and Plymouth Meeting employees misappropriated confidential customer lists, loan documents, customers and other confidential information. Plaintiff further alleges that Superior played a role in recruitment of National City's employees with an intent to harm National City. Ultimately, National City was forced to shut down the Marlton and Plymouth Meeting branches.

Plaintiff filed the instant Complaint on November 4, 2009. (Compl.) Plaintiff asserts the following claims: breach of contract against Pollicino and Coneys (Count I); misappropriation of trade secrets under the Pennsylvania Uniform Trade Secrets Act, 12 Pa. Cons. Stat. § 5301, et seq. ("PUTSA"), and New Jersey common law, against all Defendants (Count II); conversion against all Defendants (Count III); breach of fiduciary duty against Pollicino and Coneys (Count IV); unfair competition against all Defendants (Count V); tortious interference with contract against Superior (Count VI); tortious interference with contract against all Defendants (Count VII); aiding and abetting against Superior (Count VIII); a claim under the Federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030 ("CFAA") against Coneys (Count IX); civil conspiracy against all Defendants (Count X); and vicarious liability against Superior (Count XI). (Compl.)

Plaintiff filed a Motion for a Preliminary Injunction on November 12, 2009. (Pl.'s Mot. Prelim. Inj., ECF No. 2.) On January 13, 2010, the parties entered into a Consent Preliminary Injunction Order ("Consent Order"). (ECF No. 33.)The Consent Order required Defendants to "return any and all confidential information taken from or received from plaintiff that is in their or Superior's possession, custody or control . . . ." (Id. at 1.) The Consent Order also preliminarily enjoined Defendants from engaging in any solicitation of Plaintiff's customers who had not also been a customer of Superior (id. at 2) and from soliciting any revenue-producing employees of Plaintiff or its successors (id. at 4).

Plaintiff filed the instant Motion. Defendant Superior filed a response in opposition to the Motion. Plaintiff filed a reply. Defendants Coneys and Pollicino did not file responses to the Motion.


Federal Rule of Civil Procedure 15(a) requires that leave to amend the pleadings be granted freely "when justice so requires." See also Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004). A district court may deny leave to amend a complaint where "it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party." Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). "Futility" means that the "complaint, as amended, would fail to state a claim upon which relief could be granted." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).


Plaintiff moves for leave to amend the Complaint to allege additional facts, add two additional counts, and add two of the named Defendants to an already existing Count. Specifically, Plaintiff seeks to add the following paragraphs to the Complaint:

27. Before leaving employment with National City, several of the employees hired away by Superior downloaded information from National City's computer to external storage devices such as thumb drives that were not approved National City devices. After leaving employment with National City to go to Superior, at least one former National City employee entered the Plymouth branch and accessed a substantial number of files on a National City laptop.

60. In addition, Pollicino's right hand woman, Tara Moran, resigned from National City on or about July 24, 2009. At the time that Ms. Moran left National City, Pollicino remained employed by National City. Although Ms. Moran did not advise National City where she was going to work when she left National City, National City subsequently learned that she went to work for Superior.

a. On July 27, 2009, Ms. Moran connected her National City laptop to Superior's local area network. That same day, an external storage device, capable of holding 250 gigabytes of data, was connected to the National City laptop assigned to Ms. Moran. The storage device was six times larger than the hard drive capacity of the computer. At the time Ms. Moran did this, she knew she had to return her ...

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