Complaint Against Albert Whitehead
Content
Supreme Court of Pennsylvania
Court of Common Pleas
Civil Cover Sheet
LUZERNE
For Prothonotary Use Only: Docket No:
County
This form does not
The information collected on this form is used solely for court administration purposes.
supplement or replace thefding and service ofpleadings or other papers as required by law or rules of court.
Commencement of Action:
s
E
S Complaint
Q Writ of Summons
? Petition
Q Declaration of Taking
Lead Defendant's Name:
O Transfer from Another Jurisdiction
Lead Plaintiffs Name:
C T I
Sundance Vacations, Inc.
Albert Whitehead
Are money damages requested? til Yes
D No
Dollar Amount Requested:
(check one)
Owithin arbitration limits
[x] outside arbitration limits
O
N
A
Is this a Class Action Suit? Q Yes
H No
Is this an MDJ Appeal?
Q Yes
0 No
Name of Plaintiff/Appellant's Attorney: Donnna A. Walsh, Esquire
D
Check here if you have
no attorney (are a Self-Represented [Pro Sej Litigant)
Nature of the Case:
Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important.
TORT {do not include Mass Tori)
CONTRACT (do not include Judgments)
D Intentional
D Malicious Prosecution
Q I"! Q n Motor Vehicle Nuisance Premises Liability Product Liability (does not include
mass tort)
O Buyer Plaintiff
D Debt Collection: Credit Card ? Debt Collection: Other
CIVIL APPEALS Administrative Agencies
Q O O D
Board of Assessment Board of Elections Dept. of Transportation Statutory Appeal: Other
s
E
PI Employment Dispute:
Discrimination
D Slander/Libel/ Defamation
C
T
? Other:
Q Employment Dispute: Other
Q Zoning Board
D Other:
Other: Breach of Settlement
Agreement CJ
I
O
N
MASS TORT
Q Asbestos
? Tobacco
n Toxic Tort - DES Q Toxic Tort - Implant Q Toxic Waste
n Other:
REAL PROPERTY
MISCELLANEOUS
CO
D Ejectment
D Eminent Domain/Condemnation
Q Common Law/Statutasy Arbitration
Q Declaratory Judgment
|j] Mandamus
B
PROFESSIONAL LIABLITY
D D CI D
Ground Rent Landlord/Tenant Dispute Mortgage Foreclosure: Residential Mortgage Foreclosure: Commercial
Q Non-Domestic Relations
Restraining Order
O Dental O Legal
O Medical
f~J Other Professional:
Q Partition ? Quiet Title
? Other:
D Quo Warranto D Replevin D Other:
Updated 1/1/2011
IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
SUNDANCE VACATIONS, INC.,
Plaintiff, CASE NO.
v.
ALBERT WHITEHEAD,
Defendant.
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
r
Wilkes-Barre Law Library Association
(570) 822-6712 =
Northeastern Pennsylvania Legal Services, Inc. 15 Public Square -
Wilkes-Barre, Pennsylvania 18701
^
(570) 825-8567
£
00044150
IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
SUNDANCE VACATIONS, INC., Plaintiff, CASE NO.
v.
ALBERT WHITEHEAD,
Defendant.
CO
COMPLAINT
Plaintiff Sundance Vacations, Inc. states the following as its
Complaint against Defendant Albert Whitehead in the above-captioned matter:
PARTIES
1.
Plaintiff Sundance Vacations, Inc. ("Sundance Vacations") is a
corporation organized and existing under the laws of the Commonwealth of Pennsylvania and is engaged in selling travel packages to customers through direct
sales presentations. The economic harm that Sundance Vacations suffered and continues to suffer as a result of the unlawful acts described herein occurred at
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Sundance Vacations' principal place of business at 264 Highland Park Boulevard,
Wilkes-Barre, Pennsylvania.
2.
Defendant Albert Whitehead is an adult individual residing at
842 N. 27th Street, Philadelphia, Pennsylvania.
FACTUAL BACKGROUND
3.
On or about September 2004, Whitehead applied for a position
as a salesman with Sundance Vacations.
4.
When he was not selected for the position, Whitehead filed an
administrative charge and thereafter brought an action against, inter alia, Sundance
Vacations in the United States District Court for the Eastern District of
Pennsylvania alleging age discrimination.
5.
Sundance Vacations, inter alia, filed a counterclaim against
Whitehead seeking to recover damages resulting from defamatory postings that
Whitehead made on various internet sites using a variety of screen names.
6.
The litigation in the Eastern District was resolved by means of
a Settlement Agreement dated February 6, 2007, a copy of which is attached
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2
hereto as Exhibit "A."1
7.
As a material part of the settlement, Whitehead agreed that he
would not post any messages in any public forum that in any way reference, inter
alia. Sundance Vacations. The Settlement Agreement states in pertinent part:
Whitehead agrees that he will not write, construct or
post, or cause, assist or encourage others to write,
construct or post, any e-mails, correspondence or
electronic messages on any website, message board,
forum, chat room or other viewable form on the World
Wide Web, Usenet, e-mail list server or other area of the internet which mentions directly or indirectly, or by inference, parody or play on words, Sundance Vacations
.... Whitehead further covenants and agrees that the
obligations set forth in this paragraph and the Affidavit
attached hereto as Exhibit "A" are a material inducement
for Sundance Vacations ... to enter into this Agreement and are intended to become part of the consideration for this Agreement. In the event of any breach by Whitehead of any of the obligations set forth in this paragraph or the Affidavit attached hereto as Exhibit "A," the offended party may seek to enforce this Agreement and recover damages caused by the breach . . . or may institute a separate legal proceeding to recover damages and other appropriate relief. . . .
(See Settlement Agreement f 1 .)
1 While the Settlement Agreement was expressly made confidential, the United States
District Court for the Eastern District of Pennsylvania issued a Notice dated January 31, 2012 advising that the Settlement Agreement would no longer be placed under seal unless a party filed a written objection to the proposed unsealing. No objections were filed and therefore the
Settlement Agreement is now part of the public court record.
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3
8.
Pursuant to the Settlement Agreement, Whitehead further
agreed that he would not in any way disparage, inter alia. Sundance Vacations:
Whitehead further agrees not to make any comments or
statements, orally or in writing, in any medium, to any
third parties, or to take any other action which might be
deemed retaliatory or which could reasonably be construed to adversely affect and/or disparage the personal and/or business reputation of Sundance Vacations ... or any of their employees, agents, representatives or affiliates ....
(See Settlement Agreement f 9.)
COUNT I
BREACH OF CONTRACT
9.
Paragraphs 1 through 8 of this Complaint are incorporated by
reference as if set forth fully herein.
10.
Pursuant to the Settlement Agreement, Whitehead is
contractually obligated to refrain from posting any messages in any public forum that mention Sundance Vacations. (See Settlement Agreement ^j 1.) Whitehead is
also contractually obligated to refrain from making any comment or statement in
any medium which could reasonably be construed to adversely affect and/or disparage the business reputation of Sundance Vacations. (Id ^ 9.)
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1 1.
Whitehead has breached and continues to breach his
obligations under the Settlement Agreement by posting disparaging comments
concerning Sundance Vacations on the Facebook page that he is believed to
administer, "Boycott Sundance Vacations," and through other means, including,
but not limited to, sending disparaging communications to regulators and business
partners of Sundance Vacations.
12.
These breaches by Whitehead have caused and continue to
cause Sundance Vacations to suffer substantial damages for which Whitehead is liable, including, but not limited to, lost sales and damage to existing and prospective customer relationships.
WHEREFORE, Sundance Vacations demands judgment in its favor
and against Whitehead, together with an award of compensatory damages as well
as injunctive relief to prevent further breaches, and such other and further relief as
the Court deems appropriate under the circumstances.
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COUNT II
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
13.
Paragraphs 1 through 12 of this Complaint are incorporated by
reference as if set forth fully herein.
14.
Sundance Vacations has had contractual relationships with
business partners and customers and has a reasonable expectation of entering into contractual relationships with members of the public interested in purchasing
travel packages.
15.
Whitehead has published and continues to publish disparaging
statements and comments on Facebook and elsewhere with the intent to harm
existing contractual relationships between Sundance Vacations and its business
partners and customers and also to prevent prospective customers from doing business with Sundance Vacations.
16.
In addition, Whitehead, acting alone and also in concert with
others, including the Gainey & McKenna firm, has encouraged and caused customers of Sundance Vacations to discontinue doing business with Sundance
Vacations.
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1 7.
acts.
There is no privilege or justification for Whitehead' s tortious
18.
As a result of Whitehead' s tortious interference, Sundance
Vacations has suffered and continues to suffer substantial damages for which
Whitehead is liable, including, but not limited to, lost sales and damage to existing business partners and customer relationships. In addition, Sundance Vacations has
suffered and continues to suffer loss of prospective contractual relationships with customers which were reasonably likely to have occurred but for Whitehead's
tortious acts.
19.
In interfering with Sundance Vacations' existing and
prospective contractual relations, Whitehead acted intentionally, willfully,
wantonly, recklessly and in bad faith and consequently Sundance Vacations is entitled to an award of punitive damages.
WHEREFORE, Sundance Vacations demands judgment in its favor
and against Whitehead, together with an award of compensatory and punitive
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damages as well as injunctive relief to prevent further tortious acts, and such other
and further relief as the Court deems appropriate under the circumstances.
Respectfully submitted,
Daniel T. Brier Donna A. Walsh Attorneys for Plaintiff,
Sundance Vacations, Inc. MYERS, BRIER & KELLY, L.L.P. Suite 200, 425 Spruce Street Scranton,PA 18503 (570)342-6100
Date: April 25, 2012
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VERIFICATION
I, John Dowd, President and CEO of Sundance Vacations, Inc., hereby certify that the facts contained in the foregoing Complaint are true and
correct and are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities.
John Dowd
Date
00044150
Exhibit A
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter "the Agreement") is made and
entered into on this
6?
day ofgqmmba.,"20Q6,-by and between Albert Whitehead
("Whitehead"), an adult individual residing in Philadelphia, Pennsylvania; Sundance Vacations, Inc.
("Sundance Vacations"), a corporation organized and existing under the laws of the Commonwealth
of Pennsylvania with a place of business in King of Prussia, Pennsylvania; Dowd Marketing, Inc.
("Dowd Marketing"), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a place of business in Wilkes-Barre, Pennsylvania; John Dowd ('T>owd"), an adult individual with a place of business in Wilkes-Barre, Pennsylvania; and Jerry Sisk ("Sisk"), an adult
individual with a place of business in King of Prussia, Pennsylvania.
WHEREAS, on August 11, 2005, Whitehead commenced an action against Sundance Vacation, Dowd Marketing, Dowd and Sisk in the United States District Court for the
Eastern District of Pennsylvania docketed at No. 05-CV-4193 (hereinafter "the Action") alleging that he was subject to discrimination on the basis of his age when he applied for a position at
Sundance Vacations;
WHEREAS, on February 16, 2006, Sundance Vacations and Sisk asserted a counterclaim against Whitehead alleging that he posted numerous false, defamatory and disparaging
comments on the internet concerning Sundance Vacations and Sisk;
WHEREAS, on July 27, 2006 and August 21, 2006, Judge Legrome D. Davis of the United States District Court for the Eastern District of Pennsylvania Ordered Whitehead to allow his produce his computer equipment for inspection by Sundance Vacations, Dowd Marketing, Dowd and Sisk;
WHEREAS, Whitehead produced his computet for inspection on August 28, 2006;
Page 1 of 9
WHEREAS, Whitehead has identified himself as the poster of various statements on
the internet concerning, inter alia. Sundance Vacations and has agreed not to construct, write or post or cause, assist or encourage others to construct, write or post any messages in any viewable form
on the Wodd Wide Web or other area of the internet concerning Sundance Vacations, Dowd
Marketing, Dowd or Sisk, as more fully set forth in the Affidavit attached hereto as Exhibit "A" and
expressly made a part hereof; and
WHEREAS, the parties desire to settle ail causes of action and claims raised in the Action, thus discharging each other of and from all liability and responsibility as fully set forth in this
Agreement;
NOW THEREFORE, the foregoing being incorporated herein by reference and expressly made a part hereof, and intending to be legally bound, the parties agree as follows:
1.
Agreement Not To Post Messages. Whitehead agrees that he will not write,
construct or post, or cause, assist or encourage others to write, construct or post, any e-mails, correspondence or electronic messages on any website, message board, forum, chat room or other viewable form on the World Wide Web, Usenet, e-mail list server or other area of the internet which mentions directly or indirecdy, or by inference, parody or play on words, Sundance Vacations, Dowd Marketing, Dowd or Sisk. Whitehead further covenants and agrees that the obligations set
forth in this paragraph and the Affidavit attached hereto as Exhibit "A" are a material inducement for Sundance Vacations, Dowd Marketing, Dowd and Sisk to enter into this Agreement and are intended to become part of the consideration for this Agreement. In the event of any breach by Whitehead of any of the obligations set forth in this paragraph or the Affidavit attached hereto as Exhibit "A," the offended party may seek to enforce this Agreement and recover datnages caused by the breach (subject to the restrictions and limitations set forth in Paragraph 5 hereof) or may institute a separate legal proceeding to recover damages and other appropriate relief. Furthermore, in the event of any breach by Whitehead of any of obligations set forth in this paragraph or the
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3 hereof shall be null and Affidavit attached hereto as Exhibit "A," the release set forth in Paragraph
to bring suit to void and of no legal effect whatsoever and the offended party shaE be permitted including any claims for recover damages for any and all claims that were the subject of the release, attached hereto as damages resulting from the internet postings that are identified in the Affidavit attached hereto as Exhibit "A." Finally, Whitehead acknowledges and agrees that the Affidavit
be used in any enforcement Exhibit "A" and any electronic data retrieved from his computer may of this Agreement. proceeding or any subsequent action filed as a consequence of a breach
2.
General Release.
Whitehead, for himself and on behalf of his heirs,
atives, and any persons executors, administrators, successors, assigns, attorneys, agents, represent discharge Sundance Vacations, acting by or through him, does hereby release, remise, and forever directors, agents, Dowd Marketing, Dowd and Sisk, and all past, present and future officers,
affiliates, and any and all other servants, employees, representatives, attorneys, insurers, subsidiaries, are now, or may hereafter persons, firms, or corporations with whom any of the former have been, obligations, damages, costs, be affiliated, of and from any and all causes of action, claims, demands, of any kind, whether based expenses, and compensation of any nature whatsoever, liabilities, suits
or which may hereafter on a tort, contract or other theory of recovery, which Whitehead now has,
or unknown, which accrue or otherwise be acquired on account of all injuries or damages, known
of any act, event, matter, cause have been or may in the future be sustained by Whitehead as a result
ly, but without limitation, any or thing up to and including the date of this Agreement, and particular
ent and any claims that claims arising from or related in any way to any application for employm
not limited to, any claims were alleged or might have been alleged in the Action, including, but § 1983, Title VII of the arising under the United States or Pennsylvania Constitutions, 42 U.S.C.
ent Act, the Pennsylvania Civil Rights Act of 19<54, as amended, the Age Discrimination in Employm
, and any common law, Human Relations Act, or any other federal, state or local statute or regulation
release on the part of tort or contract claims, and any claims for attorneys' fees or costs. This
Page 3 of 9
Whitehead shall be a fully binding and complete settlement between the parties and all parties
represented by or claiming through them,
3.
General Release. Sundance Vacations, Dowd Marketing, Dowd and Sisk, for
themselves and on behalf of their heirs, executors, administrators, successors, assigns, attorneys, agents, employees, representatives and any person or entity acting by or through any of them, do
hereby release, remise, and forever discharge Whitehead of and from any and all causes of action,
claims, demands, obligations, damages, costs, expenses, and compensation of any nature
whatsoever, liabilities, suits of any kind, whether based on a tort, contract or other theory of
recovery, which any of them now have, or which may hereafter accrue or otherwise be acquired on
account of all injuries or damages, known or unknown, which have been or may in the future be
sustained by him or it as a result of any postings or statements published by Whitehead on any
internet site, including, but not limited to, the internet postings specifically identified in the Affidavit attached hereto as Exhibit "A."
4.
Dismissal of Luzerne County Action. The parties further agree that the writ
be of summons filed in the Court of Common Pleas of Luzerne County at No. 7021-CV-06 shall
marked withdrawn and dismissed without prejudice to the right of the named plaintiffs to file a new
action for relief if warranted in the future.
5.
Enforcement Proceedings. The parties acknowledge and agree that, in the
event of a suspected breach by Whitehead of his obligations under this Agreement, the offended party may file a motion to seek enforcement of the terms of this Agreement together with other to appropriate relief. In the event such a violation is established, the offended party shall be entided
recover from Whitehead liquidated damages in the amount of f5000.00 for each proven violation of
relief. the terms of this Agreement, plus recovery of the attorneys' fees and costs incurred in seeking
In the event a violation is not proven, the filing party shall be obligated to reimburse Whitehead in
the amount of $1 000.00, plus attorneys' fees and costs. Nothing contained herein, however, shall
Page 4 of 9
preclude any party from commencing a new action in an appropriate forum to seek relief for conduct occurring in the future and the terms set forth herein shall not apply to any new action.
6.
No Further Applicationis for Employment. Whitehead agrees that Sundance
Vacations and Dowd Marketing have no obligation whatsoever to hire or employ him at any time in
the future and further agrees not to seek employment with Sundance Vacations or Dowd Marketing
or any affiliated entity.
7.
Attorneys' Fees. Each party hereto shall bear all attorneys' fees and costs
arising from his or its actions or the actions of his or its counsel in connection with the Action, this
Agreement, the matters and documents referred to herein and all related matters.
8.
Discontinuance of the Action. It is expressly agreed and understood that
the Action shall be marked setded, discontinued and ended with prejudice. Accordingly, counsel for
the parties will, contemporaneous with the execution of this Agreement, execute a Stipulation of
Dismissal With Prejudice for the Action docketed at No. 05-CV-4193 in the United States District
Court for the Eastern District of Pennsylvania, subject to the rights of either party to enforce this
Agreement or the obligations set forth in the Affidavit attached hereto as Exhibit "A."
9.
Non-Disparagement. Whitehead further agrees not to make any comments
or statements, orally or in writing, in any medium, to any third parties, or to take any other action
which might be deemed retaliatory or which could reasonably be construed to adversely affect
and/or disparage the personal and/ or business reputation of Sundance Vacations, Dowd Marketing,
Dowd or Sisk or any of their employees, agents, representatives or affiliates, including Travel
Advantage Network or "TAN." Further, Dowd, Sisk, Sundance Vacations and Dowd Marketing
agree that neither they nor any of their officers or shareholders shall make any comments or
statements, orally or in writing, in any medium, to any third parties, or take any other action which
might be deemed retaliatory or which could reasonably be construed to adversely affect and/or
Page 5 of 9
disparage the personal and/or business reputation of Whitehead and that they will take appropriate
steps to ensure that Ed Coppinger refrains from making any disparaging comments or postings
concerning Whitehead on any internet site.
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Confidentiality, ft is understood and agreed by and between die parties that
the terms of this Agreement and the consideration mentioned in this Agreement are and shall
remain confidential. It is expressly understood and agreed, however, that Sundance Vacations,
Dowd Marketing, Dowd and Sisk shall have the right to publish, reprint and make use of the
Affidavit attached hereto as Exhibit "A" for any purpose, including, but not limited to, in seeking to
remove Whitehead's postings from any internet site.
11.
Knowing and Voluntary Waiver of Claims. Whitehead acknowledges and
agrees that, in full compliance with the Older Workers Benefit Protection Act of 1990, 29 U.S.C. §
621 et seq.:
(i)
He has read the terms of this Agreement, and he understands its
terms and effects, including the fact that he has agreed to release and forever discharge Sundance Vacations, Dowd Marketing, Dowd and Sisk and their agents, employees and representatives from
any liability for any claim relating to any application for employment;
(ii)
He has signed this Agreement voluntarily and knowingly in exchange
for the consideration described herein, which he acknowledges as adequate and satisfactory to him;
(iii)
He has been advised through this document to consult with an
attorney prior to signing this Agreement and has done so;
(iv)
He has been provided with the opportunity to consider for at least
twenty-one (21) days whether to sign this Agreement, and he has signed on the date indicated below after concluding that this Agreement is satisfactory to him;
Page 6 of 9
(v)
He acknowledges that he has the right to revoke this Agreement for a
period of seven (7) days following the execution hereof by giving written notice to defense counsel
of record by fax or hand delivery. Exercise of this right of revocation shall constitute a revocation
of this Agreement and will void the entire Agreement between the parties;
(vi)
Neither Sundance Vacations, Dowd Marketing, Dowd or Sisk nor
any of their agents, representatives or attorneys have made any representations to him concerning
the terms or effects of this Agreement other than those contained herein; and
(vii)
He agrees that he has been afforded reasonable time to consider this
Agreement, to raise concerns, ask questions and seek explanations regarding this Agreement and to
consult with legal counsel or other persons of his choosing regarding the legal, financial and other consequences of executing this Agreement and he further acknowledges and agrees that, he is voluntarily, knowingly and willfully executing this Agreement.
12.
Jurisdiction.
The parties agree that jurisdiction over this matter is to be
retained by the Honorable Legrome D. Davis of the United States District Court for the Eastern
District of Pennsylvania for a period of eighteen (18) months from the date hereof for purposes of
enabling any party to apply to the Court at any time for such direction or further decree as may be appropriate for die enforcement of this Agreement or for such additional rehef as may be
appropriate.
13.
Non-Assignment Neither this Agreement nor any of the parties'
respective interests, rights or obligations shall be assignable by any party hereto, and Whitehead and his attorneys affirm that he has not assigned or transferred any of his respective interests, rights or
obligations hereunder to any third party.
14.
Entire Agreement. This Agreement contains the entire agreement between
Page 7 of 9
the parties with regard to the matters set forth in it and shall be binding upon and inure to the
benefit of the successors and assigns of each. There are no other understandings or agreements,
verbal or otherwise, between the parties except as expressly set forth in this Agreement.
15.
Legal Advice. In entering into this Agreement, each of the parties
represents that he, she or it has relied upon the legal advice of his, her or its attorneys. The parties further represent that the terms of this Agreement have been completely reviewed by them and that
these terms are fully understood and voluntarily accepted.
16.
Applicable Law. The parties hereto enter into this Agreement
in the Commonwealth of Pennsylvania, and this Agreement shall be construed and interpreted in accordance with its laws.
17.
Construcdon. Whitehead represents and warrants that he and his attorneys
have reviewed this Agreement and the Affidavit attached hereto as Exhibit "A," that they have had
the opportunity to revise this Agreement and that the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereby execute this Agreement on the Jk=>
day of September 30Q6.
ALBERT WHITEHEAD
SUNDANCE VACATIONS, INC.
WITNESS
BY:
4-C
f^
Page 8 of 9
TITLE:
DOWD MARKETING, INC.
Rk^c^
WITNESS
O*-——' LBY: TITLE:
£%/
JOHN DOWD
Tfi^e^
WITNESS
JERRY SISK
[p^^L
WITNESS
Page 9 of 9
ij/XIllDlt /\
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALBERT WHITEHEAD, Plaintiff,
NO. 05-CV-04193
v.
SUNDANCE VACATIONS, INC., DOWD MARKETING, INC.,
JUDGE DAVIS
JOHN DOWD and JERRY SISK,
Defendants.
DECLARATION OF ALBERT WHITEHEAD
I, Albert Whitehead, make this Declaration pursuant to 28 U.S.C, Section 1746, and say that:
1.
My name is Albert Whitehead and I currently reside in Philadelphia, PA.
2.
In or about 1995, I established an account with AOL under the master
screen name " novnog."
As a member of AOL, I was able to utilize up to seven other screen
I selected and
names or pseudonyms at a time to browse and post messages on the internet.
changed pseudonyms on a frequent basis to protect and ensure my privacy while guarding against
hackers.
3.
I published a number of postings concerning Sundance Vacations, Inc. and
Dowd Marketing, Inc. using different pseudonyms on a website called Scam.com. I recall using the pseudonym Columbo, and I may have used the pseudonyms Compliance and NoNotMe. This is my best recollection of the pseudonyms that I used.
4.
The postings that I made include statements that are accurate, and
statements that are inaccurate.
5.
I was never employed by Sundance Vacations, Inc., never had a membership
in Sundance Vacations, Inc. and never attended a sales presentation at Sundance Vacations, Inc. I therefore have no personal knowledge concerning the sales presentations at Sundance Vacations,
Inc. which were the subject of my postings. Nor do I have personal knowledge or information
suggesting that Sundance Vacations, Inc. has engaged in or is engaging in fraudulent, misleading,
deceptive or pressure-filled sales presentations.
6.
I have personally sold vacations packages (Travel Advantage Network) for
Vacation Savers, a company with whom Dowd Marketing was conducting business, and I have based my personal opinion and beliefs on my first-hand knowledge of that experience, selling that
particular product.
7.
I agree that I will not in the future construct, write or post, or knowingly
cause, assist or encourage others to construct, write or post, any messages on any message boards or websites concerning Sundance Vacations, Inc., Dowd Marketing, Inc., John Dowd or Jerry
Sisk using any screen name or pseudonym.
8.
I agree that I will not write, construct or post, or knowingly cause, assist
or encourage others to write, construct or post, any e-mails, correspondence or electronic messages on any website, message board, forum, chat room or other viewable form on the World Wide Web, Usenet, e-mail listserver or other area of the Internet which mentions, directly or
indirectly, or by inference, parody or play on words, Sundance Vactions, Inc., Dowd Marketing, Inc., John Dowd or Jerry Sisk or any related entity, including Travel Advantage Network or "TAN."
9.
I also agree to take all reasonable and necessary steps in my power to delete
the above-referenced messages that I posted on Scam.com.
10.
I acquiesce to the entry of an order reflecting the terms and conditions of
this Declaration, including the retention by the Court of jurisdiction for the purpose of entering injunctive relief for any violations of the agreements contained herein.
11 .
I understand the above-captioned lawsuit will be dismissed, subject to my
agreements contained herein, and that this Declaration may be reprinted and published by
Sundance Vacations, Inc., Dowd Marketing, Inc., John Dowd and Jerry Sisk if they so elect, as
follows:
(a)
To Scam.com, in its entirety, in order to facilitate the removal of postings
that I made on that website; and
(b)
To any other person or entity, without any information identifying me as
the declarant, including ray name, address, and the case number, in order
to respond to or address the content of statements for which Defendants
have a reasonable, articulable, and good-faith belief are attributable to me,
12.
This Declaration is a result of civil litigation, instituted by me, naming
Sundance Vacations, Inc., et al. as Defendants. I have considered the advice of counsel before signing this Declaration, which I have signed of my own free will.
13.
I declare under penalty of perjury that the foregoing is true and correct.
Albert Whitehead
Executed on:
c2- G~ 2^ooy
Court of Common Pleas
Civil Cover Sheet
LUZERNE
For Prothonotary Use Only: Docket No:
County
This form does not
The information collected on this form is used solely for court administration purposes.
supplement or replace thefding and service ofpleadings or other papers as required by law or rules of court.
Commencement of Action:
s
E
S Complaint
Q Writ of Summons
? Petition
Q Declaration of Taking
Lead Defendant's Name:
O Transfer from Another Jurisdiction
Lead Plaintiffs Name:
C T I
Sundance Vacations, Inc.
Albert Whitehead
Are money damages requested? til Yes
D No
Dollar Amount Requested:
(check one)
Owithin arbitration limits
[x] outside arbitration limits
O
N
A
Is this a Class Action Suit? Q Yes
H No
Is this an MDJ Appeal?
Q Yes
0 No
Name of Plaintiff/Appellant's Attorney: Donnna A. Walsh, Esquire
D
Check here if you have
no attorney (are a Self-Represented [Pro Sej Litigant)
Nature of the Case:
Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important.
TORT {do not include Mass Tori)
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D Intentional
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Q I"! Q n Motor Vehicle Nuisance Premises Liability Product Liability (does not include
mass tort)
O Buyer Plaintiff
D Debt Collection: Credit Card ? Debt Collection: Other
CIVIL APPEALS Administrative Agencies
Q O O D
Board of Assessment Board of Elections Dept. of Transportation Statutory Appeal: Other
s
E
PI Employment Dispute:
Discrimination
D Slander/Libel/ Defamation
C
T
? Other:
Q Employment Dispute: Other
Q Zoning Board
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Agreement CJ
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Q Asbestos
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n Other:
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CO
D Ejectment
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|j] Mandamus
B
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D D CI D
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Q Non-Domestic Relations
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O Dental O Legal
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f~J Other Professional:
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Updated 1/1/2011
IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
SUNDANCE VACATIONS, INC.,
Plaintiff, CASE NO.
v.
ALBERT WHITEHEAD,
Defendant.
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
r
Wilkes-Barre Law Library Association
(570) 822-6712 =
Northeastern Pennsylvania Legal Services, Inc. 15 Public Square -
Wilkes-Barre, Pennsylvania 18701
^
(570) 825-8567
£
00044150
IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
SUNDANCE VACATIONS, INC., Plaintiff, CASE NO.
v.
ALBERT WHITEHEAD,
Defendant.
CO
COMPLAINT
Plaintiff Sundance Vacations, Inc. states the following as its
Complaint against Defendant Albert Whitehead in the above-captioned matter:
PARTIES
1.
Plaintiff Sundance Vacations, Inc. ("Sundance Vacations") is a
corporation organized and existing under the laws of the Commonwealth of Pennsylvania and is engaged in selling travel packages to customers through direct
sales presentations. The economic harm that Sundance Vacations suffered and continues to suffer as a result of the unlawful acts described herein occurred at
00044150
Sundance Vacations' principal place of business at 264 Highland Park Boulevard,
Wilkes-Barre, Pennsylvania.
2.
Defendant Albert Whitehead is an adult individual residing at
842 N. 27th Street, Philadelphia, Pennsylvania.
FACTUAL BACKGROUND
3.
On or about September 2004, Whitehead applied for a position
as a salesman with Sundance Vacations.
4.
When he was not selected for the position, Whitehead filed an
administrative charge and thereafter brought an action against, inter alia, Sundance
Vacations in the United States District Court for the Eastern District of
Pennsylvania alleging age discrimination.
5.
Sundance Vacations, inter alia, filed a counterclaim against
Whitehead seeking to recover damages resulting from defamatory postings that
Whitehead made on various internet sites using a variety of screen names.
6.
The litigation in the Eastern District was resolved by means of
a Settlement Agreement dated February 6, 2007, a copy of which is attached
00044150
2
hereto as Exhibit "A."1
7.
As a material part of the settlement, Whitehead agreed that he
would not post any messages in any public forum that in any way reference, inter
alia. Sundance Vacations. The Settlement Agreement states in pertinent part:
Whitehead agrees that he will not write, construct or
post, or cause, assist or encourage others to write,
construct or post, any e-mails, correspondence or
electronic messages on any website, message board,
forum, chat room or other viewable form on the World
Wide Web, Usenet, e-mail list server or other area of the internet which mentions directly or indirectly, or by inference, parody or play on words, Sundance Vacations
.... Whitehead further covenants and agrees that the
obligations set forth in this paragraph and the Affidavit
attached hereto as Exhibit "A" are a material inducement
for Sundance Vacations ... to enter into this Agreement and are intended to become part of the consideration for this Agreement. In the event of any breach by Whitehead of any of the obligations set forth in this paragraph or the Affidavit attached hereto as Exhibit "A," the offended party may seek to enforce this Agreement and recover damages caused by the breach . . . or may institute a separate legal proceeding to recover damages and other appropriate relief. . . .
(See Settlement Agreement f 1 .)
1 While the Settlement Agreement was expressly made confidential, the United States
District Court for the Eastern District of Pennsylvania issued a Notice dated January 31, 2012 advising that the Settlement Agreement would no longer be placed under seal unless a party filed a written objection to the proposed unsealing. No objections were filed and therefore the
Settlement Agreement is now part of the public court record.
00044150
3
8.
Pursuant to the Settlement Agreement, Whitehead further
agreed that he would not in any way disparage, inter alia. Sundance Vacations:
Whitehead further agrees not to make any comments or
statements, orally or in writing, in any medium, to any
third parties, or to take any other action which might be
deemed retaliatory or which could reasonably be construed to adversely affect and/or disparage the personal and/or business reputation of Sundance Vacations ... or any of their employees, agents, representatives or affiliates ....
(See Settlement Agreement f 9.)
COUNT I
BREACH OF CONTRACT
9.
Paragraphs 1 through 8 of this Complaint are incorporated by
reference as if set forth fully herein.
10.
Pursuant to the Settlement Agreement, Whitehead is
contractually obligated to refrain from posting any messages in any public forum that mention Sundance Vacations. (See Settlement Agreement ^j 1.) Whitehead is
also contractually obligated to refrain from making any comment or statement in
any medium which could reasonably be construed to adversely affect and/or disparage the business reputation of Sundance Vacations. (Id ^ 9.)
00044150 4
1 1.
Whitehead has breached and continues to breach his
obligations under the Settlement Agreement by posting disparaging comments
concerning Sundance Vacations on the Facebook page that he is believed to
administer, "Boycott Sundance Vacations," and through other means, including,
but not limited to, sending disparaging communications to regulators and business
partners of Sundance Vacations.
12.
These breaches by Whitehead have caused and continue to
cause Sundance Vacations to suffer substantial damages for which Whitehead is liable, including, but not limited to, lost sales and damage to existing and prospective customer relationships.
WHEREFORE, Sundance Vacations demands judgment in its favor
and against Whitehead, together with an award of compensatory damages as well
as injunctive relief to prevent further breaches, and such other and further relief as
the Court deems appropriate under the circumstances.
00044150
COUNT II
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
13.
Paragraphs 1 through 12 of this Complaint are incorporated by
reference as if set forth fully herein.
14.
Sundance Vacations has had contractual relationships with
business partners and customers and has a reasonable expectation of entering into contractual relationships with members of the public interested in purchasing
travel packages.
15.
Whitehead has published and continues to publish disparaging
statements and comments on Facebook and elsewhere with the intent to harm
existing contractual relationships between Sundance Vacations and its business
partners and customers and also to prevent prospective customers from doing business with Sundance Vacations.
16.
In addition, Whitehead, acting alone and also in concert with
others, including the Gainey & McKenna firm, has encouraged and caused customers of Sundance Vacations to discontinue doing business with Sundance
Vacations.
00044150
1 7.
acts.
There is no privilege or justification for Whitehead' s tortious
18.
As a result of Whitehead' s tortious interference, Sundance
Vacations has suffered and continues to suffer substantial damages for which
Whitehead is liable, including, but not limited to, lost sales and damage to existing business partners and customer relationships. In addition, Sundance Vacations has
suffered and continues to suffer loss of prospective contractual relationships with customers which were reasonably likely to have occurred but for Whitehead's
tortious acts.
19.
In interfering with Sundance Vacations' existing and
prospective contractual relations, Whitehead acted intentionally, willfully,
wantonly, recklessly and in bad faith and consequently Sundance Vacations is entitled to an award of punitive damages.
WHEREFORE, Sundance Vacations demands judgment in its favor
and against Whitehead, together with an award of compensatory and punitive
00044150
damages as well as injunctive relief to prevent further tortious acts, and such other
and further relief as the Court deems appropriate under the circumstances.
Respectfully submitted,
Daniel T. Brier Donna A. Walsh Attorneys for Plaintiff,
Sundance Vacations, Inc. MYERS, BRIER & KELLY, L.L.P. Suite 200, 425 Spruce Street Scranton,PA 18503 (570)342-6100
Date: April 25, 2012
00044150
VERIFICATION
I, John Dowd, President and CEO of Sundance Vacations, Inc., hereby certify that the facts contained in the foregoing Complaint are true and
correct and are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities.
John Dowd
Date
00044150
Exhibit A
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter "the Agreement") is made and
entered into on this
6?
day ofgqmmba.,"20Q6,-by and between Albert Whitehead
("Whitehead"), an adult individual residing in Philadelphia, Pennsylvania; Sundance Vacations, Inc.
("Sundance Vacations"), a corporation organized and existing under the laws of the Commonwealth
of Pennsylvania with a place of business in King of Prussia, Pennsylvania; Dowd Marketing, Inc.
("Dowd Marketing"), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a place of business in Wilkes-Barre, Pennsylvania; John Dowd ('T>owd"), an adult individual with a place of business in Wilkes-Barre, Pennsylvania; and Jerry Sisk ("Sisk"), an adult
individual with a place of business in King of Prussia, Pennsylvania.
WHEREAS, on August 11, 2005, Whitehead commenced an action against Sundance Vacation, Dowd Marketing, Dowd and Sisk in the United States District Court for the
Eastern District of Pennsylvania docketed at No. 05-CV-4193 (hereinafter "the Action") alleging that he was subject to discrimination on the basis of his age when he applied for a position at
Sundance Vacations;
WHEREAS, on February 16, 2006, Sundance Vacations and Sisk asserted a counterclaim against Whitehead alleging that he posted numerous false, defamatory and disparaging
comments on the internet concerning Sundance Vacations and Sisk;
WHEREAS, on July 27, 2006 and August 21, 2006, Judge Legrome D. Davis of the United States District Court for the Eastern District of Pennsylvania Ordered Whitehead to allow his produce his computer equipment for inspection by Sundance Vacations, Dowd Marketing, Dowd and Sisk;
WHEREAS, Whitehead produced his computet for inspection on August 28, 2006;
Page 1 of 9
WHEREAS, Whitehead has identified himself as the poster of various statements on
the internet concerning, inter alia. Sundance Vacations and has agreed not to construct, write or post or cause, assist or encourage others to construct, write or post any messages in any viewable form
on the Wodd Wide Web or other area of the internet concerning Sundance Vacations, Dowd
Marketing, Dowd or Sisk, as more fully set forth in the Affidavit attached hereto as Exhibit "A" and
expressly made a part hereof; and
WHEREAS, the parties desire to settle ail causes of action and claims raised in the Action, thus discharging each other of and from all liability and responsibility as fully set forth in this
Agreement;
NOW THEREFORE, the foregoing being incorporated herein by reference and expressly made a part hereof, and intending to be legally bound, the parties agree as follows:
1.
Agreement Not To Post Messages. Whitehead agrees that he will not write,
construct or post, or cause, assist or encourage others to write, construct or post, any e-mails, correspondence or electronic messages on any website, message board, forum, chat room or other viewable form on the World Wide Web, Usenet, e-mail list server or other area of the internet which mentions directly or indirecdy, or by inference, parody or play on words, Sundance Vacations, Dowd Marketing, Dowd or Sisk. Whitehead further covenants and agrees that the obligations set
forth in this paragraph and the Affidavit attached hereto as Exhibit "A" are a material inducement for Sundance Vacations, Dowd Marketing, Dowd and Sisk to enter into this Agreement and are intended to become part of the consideration for this Agreement. In the event of any breach by Whitehead of any of the obligations set forth in this paragraph or the Affidavit attached hereto as Exhibit "A," the offended party may seek to enforce this Agreement and recover datnages caused by the breach (subject to the restrictions and limitations set forth in Paragraph 5 hereof) or may institute a separate legal proceeding to recover damages and other appropriate relief. Furthermore, in the event of any breach by Whitehead of any of obligations set forth in this paragraph or the
Page 2 of 9
3 hereof shall be null and Affidavit attached hereto as Exhibit "A," the release set forth in Paragraph
to bring suit to void and of no legal effect whatsoever and the offended party shaE be permitted including any claims for recover damages for any and all claims that were the subject of the release, attached hereto as damages resulting from the internet postings that are identified in the Affidavit attached hereto as Exhibit "A." Finally, Whitehead acknowledges and agrees that the Affidavit
be used in any enforcement Exhibit "A" and any electronic data retrieved from his computer may of this Agreement. proceeding or any subsequent action filed as a consequence of a breach
2.
General Release.
Whitehead, for himself and on behalf of his heirs,
atives, and any persons executors, administrators, successors, assigns, attorneys, agents, represent discharge Sundance Vacations, acting by or through him, does hereby release, remise, and forever directors, agents, Dowd Marketing, Dowd and Sisk, and all past, present and future officers,
affiliates, and any and all other servants, employees, representatives, attorneys, insurers, subsidiaries, are now, or may hereafter persons, firms, or corporations with whom any of the former have been, obligations, damages, costs, be affiliated, of and from any and all causes of action, claims, demands, of any kind, whether based expenses, and compensation of any nature whatsoever, liabilities, suits
or which may hereafter on a tort, contract or other theory of recovery, which Whitehead now has,
or unknown, which accrue or otherwise be acquired on account of all injuries or damages, known
of any act, event, matter, cause have been or may in the future be sustained by Whitehead as a result
ly, but without limitation, any or thing up to and including the date of this Agreement, and particular
ent and any claims that claims arising from or related in any way to any application for employm
not limited to, any claims were alleged or might have been alleged in the Action, including, but § 1983, Title VII of the arising under the United States or Pennsylvania Constitutions, 42 U.S.C.
ent Act, the Pennsylvania Civil Rights Act of 19<54, as amended, the Age Discrimination in Employm
, and any common law, Human Relations Act, or any other federal, state or local statute or regulation
release on the part of tort or contract claims, and any claims for attorneys' fees or costs. This
Page 3 of 9
Whitehead shall be a fully binding and complete settlement between the parties and all parties
represented by or claiming through them,
3.
General Release. Sundance Vacations, Dowd Marketing, Dowd and Sisk, for
themselves and on behalf of their heirs, executors, administrators, successors, assigns, attorneys, agents, employees, representatives and any person or entity acting by or through any of them, do
hereby release, remise, and forever discharge Whitehead of and from any and all causes of action,
claims, demands, obligations, damages, costs, expenses, and compensation of any nature
whatsoever, liabilities, suits of any kind, whether based on a tort, contract or other theory of
recovery, which any of them now have, or which may hereafter accrue or otherwise be acquired on
account of all injuries or damages, known or unknown, which have been or may in the future be
sustained by him or it as a result of any postings or statements published by Whitehead on any
internet site, including, but not limited to, the internet postings specifically identified in the Affidavit attached hereto as Exhibit "A."
4.
Dismissal of Luzerne County Action. The parties further agree that the writ
be of summons filed in the Court of Common Pleas of Luzerne County at No. 7021-CV-06 shall
marked withdrawn and dismissed without prejudice to the right of the named plaintiffs to file a new
action for relief if warranted in the future.
5.
Enforcement Proceedings. The parties acknowledge and agree that, in the
event of a suspected breach by Whitehead of his obligations under this Agreement, the offended party may file a motion to seek enforcement of the terms of this Agreement together with other to appropriate relief. In the event such a violation is established, the offended party shall be entided
recover from Whitehead liquidated damages in the amount of f5000.00 for each proven violation of
relief. the terms of this Agreement, plus recovery of the attorneys' fees and costs incurred in seeking
In the event a violation is not proven, the filing party shall be obligated to reimburse Whitehead in
the amount of $1 000.00, plus attorneys' fees and costs. Nothing contained herein, however, shall
Page 4 of 9
preclude any party from commencing a new action in an appropriate forum to seek relief for conduct occurring in the future and the terms set forth herein shall not apply to any new action.
6.
No Further Applicationis for Employment. Whitehead agrees that Sundance
Vacations and Dowd Marketing have no obligation whatsoever to hire or employ him at any time in
the future and further agrees not to seek employment with Sundance Vacations or Dowd Marketing
or any affiliated entity.
7.
Attorneys' Fees. Each party hereto shall bear all attorneys' fees and costs
arising from his or its actions or the actions of his or its counsel in connection with the Action, this
Agreement, the matters and documents referred to herein and all related matters.
8.
Discontinuance of the Action. It is expressly agreed and understood that
the Action shall be marked setded, discontinued and ended with prejudice. Accordingly, counsel for
the parties will, contemporaneous with the execution of this Agreement, execute a Stipulation of
Dismissal With Prejudice for the Action docketed at No. 05-CV-4193 in the United States District
Court for the Eastern District of Pennsylvania, subject to the rights of either party to enforce this
Agreement or the obligations set forth in the Affidavit attached hereto as Exhibit "A."
9.
Non-Disparagement. Whitehead further agrees not to make any comments
or statements, orally or in writing, in any medium, to any third parties, or to take any other action
which might be deemed retaliatory or which could reasonably be construed to adversely affect
and/or disparage the personal and/ or business reputation of Sundance Vacations, Dowd Marketing,
Dowd or Sisk or any of their employees, agents, representatives or affiliates, including Travel
Advantage Network or "TAN." Further, Dowd, Sisk, Sundance Vacations and Dowd Marketing
agree that neither they nor any of their officers or shareholders shall make any comments or
statements, orally or in writing, in any medium, to any third parties, or take any other action which
might be deemed retaliatory or which could reasonably be construed to adversely affect and/or
Page 5 of 9
disparage the personal and/or business reputation of Whitehead and that they will take appropriate
steps to ensure that Ed Coppinger refrains from making any disparaging comments or postings
concerning Whitehead on any internet site.
qQ AMU* m M Am*"-*" 'T U
10.
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1,
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Confidentiality, ft is understood and agreed by and between die parties that
the terms of this Agreement and the consideration mentioned in this Agreement are and shall
remain confidential. It is expressly understood and agreed, however, that Sundance Vacations,
Dowd Marketing, Dowd and Sisk shall have the right to publish, reprint and make use of the
Affidavit attached hereto as Exhibit "A" for any purpose, including, but not limited to, in seeking to
remove Whitehead's postings from any internet site.
11.
Knowing and Voluntary Waiver of Claims. Whitehead acknowledges and
agrees that, in full compliance with the Older Workers Benefit Protection Act of 1990, 29 U.S.C. §
621 et seq.:
(i)
He has read the terms of this Agreement, and he understands its
terms and effects, including the fact that he has agreed to release and forever discharge Sundance Vacations, Dowd Marketing, Dowd and Sisk and their agents, employees and representatives from
any liability for any claim relating to any application for employment;
(ii)
He has signed this Agreement voluntarily and knowingly in exchange
for the consideration described herein, which he acknowledges as adequate and satisfactory to him;
(iii)
He has been advised through this document to consult with an
attorney prior to signing this Agreement and has done so;
(iv)
He has been provided with the opportunity to consider for at least
twenty-one (21) days whether to sign this Agreement, and he has signed on the date indicated below after concluding that this Agreement is satisfactory to him;
Page 6 of 9
(v)
He acknowledges that he has the right to revoke this Agreement for a
period of seven (7) days following the execution hereof by giving written notice to defense counsel
of record by fax or hand delivery. Exercise of this right of revocation shall constitute a revocation
of this Agreement and will void the entire Agreement between the parties;
(vi)
Neither Sundance Vacations, Dowd Marketing, Dowd or Sisk nor
any of their agents, representatives or attorneys have made any representations to him concerning
the terms or effects of this Agreement other than those contained herein; and
(vii)
He agrees that he has been afforded reasonable time to consider this
Agreement, to raise concerns, ask questions and seek explanations regarding this Agreement and to
consult with legal counsel or other persons of his choosing regarding the legal, financial and other consequences of executing this Agreement and he further acknowledges and agrees that, he is voluntarily, knowingly and willfully executing this Agreement.
12.
Jurisdiction.
The parties agree that jurisdiction over this matter is to be
retained by the Honorable Legrome D. Davis of the United States District Court for the Eastern
District of Pennsylvania for a period of eighteen (18) months from the date hereof for purposes of
enabling any party to apply to the Court at any time for such direction or further decree as may be appropriate for die enforcement of this Agreement or for such additional rehef as may be
appropriate.
13.
Non-Assignment Neither this Agreement nor any of the parties'
respective interests, rights or obligations shall be assignable by any party hereto, and Whitehead and his attorneys affirm that he has not assigned or transferred any of his respective interests, rights or
obligations hereunder to any third party.
14.
Entire Agreement. This Agreement contains the entire agreement between
Page 7 of 9
the parties with regard to the matters set forth in it and shall be binding upon and inure to the
benefit of the successors and assigns of each. There are no other understandings or agreements,
verbal or otherwise, between the parties except as expressly set forth in this Agreement.
15.
Legal Advice. In entering into this Agreement, each of the parties
represents that he, she or it has relied upon the legal advice of his, her or its attorneys. The parties further represent that the terms of this Agreement have been completely reviewed by them and that
these terms are fully understood and voluntarily accepted.
16.
Applicable Law. The parties hereto enter into this Agreement
in the Commonwealth of Pennsylvania, and this Agreement shall be construed and interpreted in accordance with its laws.
17.
Construcdon. Whitehead represents and warrants that he and his attorneys
have reviewed this Agreement and the Affidavit attached hereto as Exhibit "A," that they have had
the opportunity to revise this Agreement and that the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereby execute this Agreement on the Jk=>
day of September 30Q6.
ALBERT WHITEHEAD
SUNDANCE VACATIONS, INC.
WITNESS
BY:
4-C
f^
Page 8 of 9
TITLE:
DOWD MARKETING, INC.
Rk^c^
WITNESS
O*-——' LBY: TITLE:
£%/
JOHN DOWD
Tfi^e^
WITNESS
JERRY SISK
[p^^L
WITNESS
Page 9 of 9
ij/XIllDlt /\
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALBERT WHITEHEAD, Plaintiff,
NO. 05-CV-04193
v.
SUNDANCE VACATIONS, INC., DOWD MARKETING, INC.,
JUDGE DAVIS
JOHN DOWD and JERRY SISK,
Defendants.
DECLARATION OF ALBERT WHITEHEAD
I, Albert Whitehead, make this Declaration pursuant to 28 U.S.C, Section 1746, and say that:
1.
My name is Albert Whitehead and I currently reside in Philadelphia, PA.
2.
In or about 1995, I established an account with AOL under the master
screen name " novnog."
As a member of AOL, I was able to utilize up to seven other screen
I selected and
names or pseudonyms at a time to browse and post messages on the internet.
changed pseudonyms on a frequent basis to protect and ensure my privacy while guarding against
hackers.
3.
I published a number of postings concerning Sundance Vacations, Inc. and
Dowd Marketing, Inc. using different pseudonyms on a website called Scam.com. I recall using the pseudonym Columbo, and I may have used the pseudonyms Compliance and NoNotMe. This is my best recollection of the pseudonyms that I used.
4.
The postings that I made include statements that are accurate, and
statements that are inaccurate.
5.
I was never employed by Sundance Vacations, Inc., never had a membership
in Sundance Vacations, Inc. and never attended a sales presentation at Sundance Vacations, Inc. I therefore have no personal knowledge concerning the sales presentations at Sundance Vacations,
Inc. which were the subject of my postings. Nor do I have personal knowledge or information
suggesting that Sundance Vacations, Inc. has engaged in or is engaging in fraudulent, misleading,
deceptive or pressure-filled sales presentations.
6.
I have personally sold vacations packages (Travel Advantage Network) for
Vacation Savers, a company with whom Dowd Marketing was conducting business, and I have based my personal opinion and beliefs on my first-hand knowledge of that experience, selling that
particular product.
7.
I agree that I will not in the future construct, write or post, or knowingly
cause, assist or encourage others to construct, write or post, any messages on any message boards or websites concerning Sundance Vacations, Inc., Dowd Marketing, Inc., John Dowd or Jerry
Sisk using any screen name or pseudonym.
8.
I agree that I will not write, construct or post, or knowingly cause, assist
or encourage others to write, construct or post, any e-mails, correspondence or electronic messages on any website, message board, forum, chat room or other viewable form on the World Wide Web, Usenet, e-mail listserver or other area of the Internet which mentions, directly or
indirectly, or by inference, parody or play on words, Sundance Vactions, Inc., Dowd Marketing, Inc., John Dowd or Jerry Sisk or any related entity, including Travel Advantage Network or "TAN."
9.
I also agree to take all reasonable and necessary steps in my power to delete
the above-referenced messages that I posted on Scam.com.
10.
I acquiesce to the entry of an order reflecting the terms and conditions of
this Declaration, including the retention by the Court of jurisdiction for the purpose of entering injunctive relief for any violations of the agreements contained herein.
11 .
I understand the above-captioned lawsuit will be dismissed, subject to my
agreements contained herein, and that this Declaration may be reprinted and published by
Sundance Vacations, Inc., Dowd Marketing, Inc., John Dowd and Jerry Sisk if they so elect, as
follows:
(a)
To Scam.com, in its entirety, in order to facilitate the removal of postings
that I made on that website; and
(b)
To any other person or entity, without any information identifying me as
the declarant, including ray name, address, and the case number, in order
to respond to or address the content of statements for which Defendants
have a reasonable, articulable, and good-faith belief are attributable to me,
12.
This Declaration is a result of civil litigation, instituted by me, naming
Sundance Vacations, Inc., et al. as Defendants. I have considered the advice of counsel before signing this Declaration, which I have signed of my own free will.
13.
I declare under penalty of perjury that the foregoing is true and correct.
Albert Whitehead
Executed on:
c2- G~ 2^ooy
