United States District Court, W.D. Pennsylvania
Marilyn J. Horan United States District Judge.
commercial dispute, Plaintiff Armstrong Telecommunications,
Inc. ("Armstrong") alleges that Defendant CHR
Solutions, Inc. ("CHR") breached a contract between
the parties. CHR, in turn, counterclaims that Armstrong
breached the contract and alleges that any perceived problems
with CHR's performance of the contract was due to
Armstrong's own conduct. In addition, CHR alleges that
its former employee, Third-Party Defendant Virginia Gardea
("Gardea"), unlawfully conspired with Third-Party
Defendant Vantage Point Solutions, Inc. ("Vantage
Point"), and Armstrong, in a scheme to usurp CHR's
contract from Armstrong. Presently before the Court is the
Third-Party Defendants' Motion to Dismiss CHR's
Second Amended Third-Party Claims. ECF No. 92. For the
reasons that follow, the Third-Party's motion to dismiss
will be granted in part, and denied in part.
filed a Complaint against CHR on June 15, 2018, alleging
various claims arising out of a contract between the parties.
ECF No. 1. CHR Answered the Complaint, filed Counterclaims
against Armstrong, and filed Third-Party Claims against
Gardea and Vantage Point. ECF No. 26. On December 20, 2018,
the Court granted the Third-Party Defendants' Motion to
Dismiss the Third-Party Claims, without prejudice. ECF No.
65. CHR filed its Amended Third-Party Claims against Ms.
Gardea and Vantage Point on January 25, 2019. ECF No. 69. On
April 24, 2019, the Court issued a Memorandum Opinion and
Order, granting the Third-Party Defendants' Motion to
Dismiss CHR's Amended Third-Party Claims, without
prejudice. ECF No. 84. On May 24, 2019, CHR filed its Answer
to the Complaint, Counterclaims against Armstrong, and Second
Amended Third-Party Claims against Gardea and Vantage Point.
ECF No. 86. In response, Armstrong answered the
Counterclaims, and the Third-Party Defendants filed the
instant Motion to Dismiss. ECF Nos. 96 & 92.
in mind that the instant Motion to Dismiss does not directly
concern the claims and counterclaims between Armstrong and
CHR, the relevant factual background necessary for resolution
of the present motion is as follows. Armstrong and CHR
entered into a Master Services Agreement, dated May 30, 2017
("MSA"), by which CHR agreed to provide certain
specialized engineering services in furtherance of
Armstrong's contract to provide broadband services to
rural markets in New York. ECF No. 1 at ¶¶ 10-11,
18. Prior to entering into the MSA, CHR presented Armstrong
with a proposal titled, "Outside Plant Engineering
Services, Statement of Work, Summary Format (SOW#
2506)," (hereinafter "Statement of Work").
Id. at ¶ 16; ECF No. 5-1, at 13-25; ECF No. 86,
at p. 16, ¶ 8. During the negotiations for the MSA,
Gardea was employed by CHR, and she was CHR's primary
contact person with Armstrong. ECF No. 86, at p. 16,
¶¶ 6-7; p. 19 ¶ 28. She was also the author of
the Statement of Work and the MSA. Id. The MSA
incorporated the parties' two-page Work Order, which in
turn incorporated the Statement of Work. ECF No. 1, at ¶
18; ECF No. 86, at p. 16, ¶ 8. The MSA, the Work Order,
and the Statement of Work, in combination, constitute the
parties' contract. Id.; see also MSA,
Allegations against CHR
alleges that, due to CHR's mistakes, deficiencies, and
delays in its performance of the Master Services Agreement,
in January of 2018, Armstrong placed CHR on notice of its
intent to terminate their agreement. ECF No. 1, at
¶¶ 30, 66. Armstrong alleges that CHR failed to
cure its deficiencies; and therefore, Armstrong hired Vantage
Point to audit, correct, and complete the services that CHR
had originally contracted to perform. Id.
response, CHR alleges that Armstrong failed to fulfill
its' contractual obligation to consistently provide CHR
with "qualified personnel, reliable information, sound
engineering, and prompt, reliable decisions." ECF No.
86, at p. 17, ¶¶ 11-12. CHR further alleges that
Armstrong failed to timely identify essential hub site
locations and transport routes, delayed providing essential
design criteria, and changed the design criteria and
procedures, while also insisting that CHR substantially
revise and redesign the project, without providing sufficient
time. Id. at p. 17, ¶¶ 15-17. As a result
of the above failures by Armstrong, and Armstrong's
additional actions and omissions, the project encountered
significant delays. Id. at p. 18-19, ¶¶
Gardea was hired by CHR in August, 2015, she executed a
Confidentiality, Non-Disclosure, and Non-Solicitation
Agreement ("August 2015 Agreement"). Id.
at p. 27, ¶ 27; Confidentiality, Non-Disclosure, and
Non-Solicitation Agreement, Aug. 15, 2017, attached to Ex. 4,
at ECF No. 86-4, at pp. 2-9. CHR alleges that, while the
project with Armstrong was being implemented, Gardea
interviewed and accepted employment with Vantage Point,
without CHR's knowledge. Id. at p. 19,
¶¶ 25, 29. Vantage Point is a direct competitor of
CHR. Id. at p. 19, ¶ 30. Gardea resigned from
CHR on September 12, 2017. Id. On the day she
resigned, Gardea signed a one-page, four-paragraph,
"Employee Confidentiality Agreement ("September
2017 Agreement")", which reiterated her
obligations, primarily related to confidential and propriety
information, and trade secrets, under the August 2015
Agreement. ECF No. 86, at p. 19, ¶ 31; Employee
Confidentiality Agreement, Sept. 12, 2017, attached to Ex. 4,
at ECF No. 86-4, at p. 10.
week after Gardea resigned, CHR's Chief Executive Officer
notified Vantage Point of Gardea's confidentiality
obligations that prevented both her, and her new employer,
"from using or disclosing CHR confidential information
and soliciting CHR's clients." ECF No. 86, at p. 20,
¶ 33. Vantage Point's CEO and Gardea allegedly
indicated to CHR that they were unaware of any
confidentiality agreement. Id. at p. 20, ¶ 34.
Therefore, CHR forwarded copies of both the August 2015 and
September 2017 documents to Vantage Point's CEO and
Gardea. Letter from A. Pasrija to L. Thompson, Sept. 28,
2017, ECF No. 86-4. CHR alleges that Vantage Point's CEO
assured CHR that Gardea would not be working on projects in
the Eastern United States, and specifically, that she would
not be working on the Armstrong project. ECF No. 86, at p.
20, ¶ 35. CHR relied on these assurances in choosing not
to seek formal injunctive relief against Vantage Point and
Gardea. Id. CHR further alleges that, contrary to
said assurances, "Gardea was actively informed and
participated in the solicitation of Armstrong on this very
alleges that Armstrong gave decision-making authority to
Shawn Beqaj ("Beqaj"), Armstrong's Vice
President of Regulatory Affairs, despite the MSA's
provision that Kevin Young was Armstrong's designated
representative. Id. at p. 17, ¶ 13. According
to CHR, during the initial implementation of the project,
Gardea developed a friendship with Beqaj. Id. at p.
19, ¶¶ 25, 29. CHR alleges that Beqaj became
critical of CHR's work directly after Gardea resigned
from CHR. Id. at p. 19, ¶ 25. CHR alleges that
within weeks of Gardea's resignation, Armstrong increased
its criticism of CHR's work, and also began to have more
unexplained urgent "issues". Id. at p. 20,
November 13, 2017, Gardea sent an email to Beqaj inviting him
to attend a Vantage Point webinar, with the bulk of the email
touting Vantage Point's reputation and leadership in
performing work related to Armstrong's business.
Id. at p. 20, ¶ 36; Email from V. Gardea to S.
Beqaj, Nov. 13, 2017, ECF No. 86-5. On December 6, 2017,
Vantage Point was actively soliciting Armstrong for work in
the Eastern United States, as indicated in emails to Beqaj.
ECF No. 86-6, at p. 1. On December 12, 2017, Gardea was
included in an email from Vantage Point to Armstrong, which
also discussed Vantage Point doing work for Armstrong.
Id. Additional email communications from December,
2017 through January, 2018, indicate that Vantage Point and
Armstrong were getting close to finalizing an agreement for
work. Id. at pp. 2, 7.
early February, 2018, Gardea and Beqaj were seen
communicating during a Vantage Point sponsored industry event
in Springfield, Massachusetts. ECF No. 86, at p. 21, ¶
38[a]. CHR alleges that Gardea's presence at
this event in the Eastern United States indicates that
Vantage Point never intended to honor its prior assurances
that Gardea would only be employed in the Western United
States. Id. CHR alleges that, as a result of
Gardea's interactions with Beqaj, and in concert with the
overall plan to have Vantage Point take over CHR's
Armstrong project, Beqaj notified CHR on February 23, 2018,
that Armstrong added Vantage Point to audit CHR's work on
the project. Id. at p. 21, ¶ 37[b]. On February
26, 2018, Beqaj forwarded to Gardea, an email exchange he had
with a CHR Vice President, discussing Armstrong's
decision to add Vantage Point to the project. Id. at
p. 21, ¶ 38[b]; ECF No. 86-7.
alleges that Armstrong's hiring of Vantage Point to
conduct an "audit" was a ruse, with the true goal
being to allow Vantage Point to misappropriate CHR's
work-product and take over the Armstrong project, all
facilitated by Gardea in concert with Beqaj. ECF No. 86, at
pp. 22-23, ¶¶ 45, 49. CHR alleges that Vantage
Point's audit eventually resulted in the termination of
CHR's contract on April 4, 2018, after which Vantage
Point took over completion of the Armstrong project.
Id. at p. 22, ¶¶ 45-46.
asserts claims of Breach of Contract (Count I) and Fraudulent
Inducement (Count II), solely against Armstrong. Id.
at pp. 23-25, ¶¶ 50-59. In Count III, CHR asserts a
Breach of Contract claim against Gardea, alleging that Gardea
breached her confidentiality agreement by assisting Vantage
Point in replacing CHR on the Armstrong contract.
Id. at p. 25, ¶¶ 60-64. CHR asserts two
separate claims of Tortious Interreference with a Contract:
in Count IV, CHR alleges that Gardea and Vantage Point
unlawfully interfered with CHR's contract with Armstrong;
and in Count V, CHR alleges that Armstrong and Vantage Point
unlawfully interfered with CHR and Gardea5 s confidentiality
agreements. Id. at pp. 25-27, ¶¶ 65-76. In
Count VI, CHR asserts a claim of Civil Conspiracy against
Gardea, Vantage Point, and Armstrong. Id. at pp.