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Camp Summit of Summitville, Inc. v. Visinski

April 13, 2007


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


Defendant/counterclaim-plaintiff Shellie Santay Visinski ("defendant" or "Visinski") brings this counterclaim against plaintiff/counterclaim-defendant Camp Summit of Summitville, Inc. ("plaintiff" or "Camp Summit"), alleging that plaintiff committed a slew of unlawful acts in connection with its short-lived employment of Visinski as its camp director.

Prior to joining Camp Summit, Visinski served for ten years as camp director at another summer camp, Camp Pocono Ridge ("Pocono Ridge"). When Pocono Ridge's owners sold the camp in September 2005, Visinski purchased Pocono Ridge's tradename and its list of current campers. Employment negotiations between Visinski and Camp Summit -- which began in Spring 2005, when Summit first became aware that Pocono Ridge would be sold -- eventually led to an oral agreement in October 2005.

Under the various terms of this oral contract, Visinski became Camp Summit's full-time camp director, and Summit agreed to pay Visinski commissions on tuition paid by former Pocono Ridge campers whom Visinski enrolled at Summit. The parties further agreed that the 2006 summer season would be called "Pocono Ridge at Camp Summit," Summit and Pocono Ridge would merge their camper databases for the 2006 season, and Summit would be permitted to use the Pocono Ridge tradename for the 2006 season (but defendant otherwise retained ownership of the tradename). Summit also granted Visinski the right to acquire an ownership interest in Summit if certain conditions were met.

Visinski began working for Camp Summit immediately in October 2005, recruiting over 100 campers to attend Summit's 2006 season. However, allegedly because no written agreement had been signed by the parties, Visinski enrolled campers using her own form (rather than Summit's enrollment form), and she asked parents to make tuition payments directly to an entity that Visinski owned and operated (rather than to Summit).

By early 2006, the relationship between the parties began to deteriorate, and in May 2006, Camp Summit terminated Visinski's employment and hired another camp director. However, Summit continued to use the tradename and camper list owned by defendant as it prepared for the 2006 summer.

Visinski's counterclaim alleges twelve separate causes of action: trademark violations and infringement (count one), unfair competition (count two), tortious interference (count three), fraud, deceit, misrepresentation (count four), breach of contract (count five), lack of good faith or fair dealing (count six), quantum meruit/unjust enrichment (count seven), defamation (count eight), conversion (count nine), loss of business for unlawful use of confidential information (count ten), unlawful appropriation of defendant's identity or person (count eleven), and intentional or negligent infliction of emotional distress (count twelve).

Camp Summit moves to dismiss counts three, four, five, six, eight, nine, ten, and twelve.

For the reasons stated below, plaintiff's motion to dismiss the fifth cause of action is denied, but its motion to dismiss the third, fourth, sixth, eighth, ninth, tenth and twelfth causes of action is granted.

I. Background

The following well-pleaded facts are presumed true.

For almost fifty years, members of Visinski's family owned and operated a sleepaway camp for children in Pennsylvania, named Camp Pocono Ridge. (Countercl. ¶ 168.) The family members owned the camp through an entity named Camp Pocono Ridge, Inc. II. (Id.) During this fifty year period, the owners invested significant resources into the promotion of the Camp Pocono Ridge tradename; during that time, "the public in several states bordering or near the eastern seaboard" came to use shortened versions of that tradename, including "Camp Pocono" and "Pocono Ridge," to signify the camp. (Id. ¶¶ 170-71.) The tradename -- as well as its shortened versions -- have been used by the camp owners continuously and are "expected to be so used in the summer camp business and operations in the future." (Id. ¶ 171.) Moreover, the tradename has become synonymous with "care, skill, integrity, industriousness and reliability, resulting in a multi-state reputation for excellence and high quality in children's summer camps." (Id. ¶ 172.)

Although Visinski never owned stock in or served as an officer or corporate director of Camp Pocono Ridge, Inc. II, the camp employed her as the full-time, year-round camp director from at least September 1995 until September 2005, when defendant's family sold the property on which the camp was situated to a charitable organization. (Id. ¶¶ 169, 173.) During her tenure as camp director, defendant "acquired and enjoyed a reputation as an excellent and outstanding camp director" which resulted in a "considerable following with and among campers and their parents." (Id. ¶ 175.)

In Spring 2005, Camp Summit became aware that Visinski's family intended to sell Pocono Ridge and plaintiff offered defendant a position as Summit's camp director for the 2006 season. Visinski declined the offer because she "wanted more than a camp director's position if the sale of Camp Pocono Ridge was consummated." (Id. ¶ 177.) However, the parties resumed communications in July 2005 and continued negotiating throughout the summer while Visinski completed her final season as Pocono Ridge's director. (Id. ¶¶ 178-79.)

Shortly after the camp season ended, in September 2005, Visinski's family consummated the sale of the land on which Pocono Ridge was located. The camp was thereafter discontinued. "All of the other tangible and intangible assets" of Camp Pocono Ridge Inc., II -- including the tradename and camper list -- were sold to Visinski. (Id. ¶¶ 173-74.) The camper list thus became "the sole and exclusive confidential property of defendant." (Id. ¶ 183.)

Following the sale of the camp, in October 2005, "a verbal understanding and agreement was reached and expressed between defendant and plaintiff." (Id. ¶ 179.) Key provisions of this oral agreement included:

(i) defendant becoming the full-time, 12 month per year camp director of Camp Summit at a salary of $50,000.00 per year;

(ii) informing previous Camp Pocono Ridge campers and parents that the 2006 season would be Pocono Ridge at Camp Summit with [Visinski] being the camp director to ease the transition for the campers;

(iii) paying a commission to [Visinski] of 15-20% of the tuition fees of the previous Camp Pocono Ridge and new campers enrolled by [Visinski] for the 2006 summer season, such commission rate depending on the number of campers enrolled;

(iv) merging the computer databases and information of Camp Pocono Ridge and Camp Summit for the 2006 season;

(v) reserving the exclusive ownership and rights in the Camp Pocono Ridge, Camp Pocono and Pocono Ridge names and tradename in and to defendant, excepting only the 2006 summer camp season for transitory purposes, but only for such transition purposes upon the express condition that [Visinski] have a signed agreement with plaintiff before plaintiff could have permission to use the Pocono Ridge names, tradename and good will for the 2006 transition period; and

(vi) granting to [Visinski] the right and option to acquire an ownership interest in Camp Summit depending on the existence of certain conditions. * * *

[P]laintiff agreed to keep [Visinski's camper list] confidential and only use same for the mutual benefit of the parties . . . . (Id. ¶¶ 180, 183.)

Although Camp Summit promised to prepare a conforming written contract quickly, it urged Visinski to begin working as its director immediately -- without a written contract in place -- "so that prospective campers would not be lost to competitors" and recruiting and promotion of the 2006 camp season could commence. (Id. ¶ 181.) Trusting that Camp Summit would draft the conforming agreement in due time, Visinski commenced working as its director in October 2005.

As part of their agreement, Visinski disclosed Pocono Ridge's camper list to Summit. (Id. ¶ 182.) In addition, both parties began informing previous Pocono Ridge campers that Visinski would become Camp Summit's director in 2006, thereby "induc[ing] a significant number of previous Camp Pocono Ridge campers and others to choose going the camp in 2006 where [defendant] would be the camp director." (Id. ¶ 185.)

Visinski personally recruited over 100 campers to enroll at Camp Summit for the 2006 season, all of whom enrolled "only . . . because of their belief and desire that defendant would be the 2006 summer camp director. (Id. ¶¶ 186, 192.) Defendant's personal recruitment entitled her to a 20% commission of her enrollees' tuition fees. (Id. ¶ 186.) Because Summit had not yet drafted the written contract memorializing the parties' verbal agreement, Visinski required "her" recruits to enroll for the 2006 season by completing an application form drafted by defendant -- a form that differed from the form used by Camp Summit. (See id. ¶ 193.) Moreover, Visinski directed her recruited campers to "wr[i]te checks to an account separate and apart from Camp Pocono Ridge and from Camp Summit, i.e., to an entity of defendant named Fancyface, LLC, as both parties agreed that none of those tuition fees and deposits would be the property of Camp Summit . . . until there was a mutually agreed upon signed contract between the parties." (Id. ¶ 187.) In addition to recruiting campers, Visinski also fulfilled her director duties by marketing Camp Summit in "many states and Europe," and recruiting counselors, coaches and staff that had previously worked for Pocono Ridge. (Id. ¶ 190.)

Sometime between October 2005 and early 2006, Summit drafted a document entitled "Employment Agreement," which was intended to memorialize the parties' agreement. (Id. ¶ 191.) However, Visinski did not accept this document as the final written agreement and the parties continued to negotiate over the written agreement's details.

By May 2006, Visinski noticed that Camp Summit's principal owner, David Stern, had removed himself from the negotiation process, and that "lengthy periods of time ensued when defendant tried to, but could not communicate verbally or in person with plaintiff." (Id. ¶ 192.) Visinski also became aware that Summit had "caused the parents" of all campers recruited by defendant -- who had initially signed the Pocono Ridge at Camp Summit enrollment form drafted by defendant -- to "sign or resign their child's enrollment at Camp Summit on Camp Summit's own form." (Id. ¶ 193.) Nevertheless, Visinski continued to carry out her director responsibilities.

At the end of May 2006, Summit "denied defendant access to plaintiff's computer and the database that was being used in connection with defendant's employment." (Id. ¶ 195.) Summit subsequently terminated Visinski and hired another camp director for the 2006 season, "while continuing to use the name, tradename and good will of Camp Pocono Ridge and defendant." (Id. ¶ 196.) Summit "now asserts rights in defendant's property," namely, the Pocono Ridge tradename. (Id. ¶ 200.)

Camp Summit filed suit against Visinski on June 28, 2006, alleging causes of action for defendant's breach of duty of loyalty, conversion, trespass to chattel, defamation, tortious interference with existing economic advantage, tortious interference with prospective economic advantage, and violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.

On July 20, 2006, Visinski answered the complaint and filed a counterclaim against Summit alleging the twelve causes of action noted above. (Countercl. ¶¶ 202-69.)

On September 8, 2006 Summit moved to dismiss Visinski's claims for breach of contract, breach of the duty of good faith and fair dealing, fraud, conversion, defamation, tortious interference, loss of business for unlawful use of confidential information, and ...

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