MTPCS LLC v. Hollis

46 Pa. D. & C.5th 524
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedApril 7, 2015
DocketNos. 2012-21508, 518 EDA 2014, 519 EDA 2014
StatusPublished

This text of 46 Pa. D. & C.5th 524 (MTPCS LLC v. Hollis) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MTPCS LLC v. Hollis, 46 Pa. D. & C.5th 524 (Pa. Super. Ct. 2015).

Opinion

ROGERS, J.,

I. INTRODUCTION

Appellant MTPCS, LLC d/b/a Cellular One1 (“appellant MTPCS”) and third party appellants Jonathan Foxman, Daniel E. Hopkins, Broadpoint Holdco, LLC, Broadpoint, LLC, Central Louisiana Holdco, LLC, MTPCS Holdings, LLC, OK-5 Holdco, LLC and TX-10 Holdco, LLC2 (together “appellants”) have appealed to the Superior Court of Pennsylvania (“Superior Court”) from this court’s orders dated and docketed on January 7, 2014, overruling appellants’ preliminary objections in part. For the reasons set forth below, the court’s January 7, 2014 orders should be affirmed and the case remanded for further proceedings.

II. FACTUAL AND PROCEDURAL HISTORY

The relevant facts and procedural history underlying this consolidated appeal are as follows. By letter dated [527]*527June 24, 2010, Third party appellant Jonathan Foxman offered appellee Charles M. Hollis (“Hollis”) the position of executive vice president and chief operating officer on behalf of appellant MTPCS. (Complaint, filed 8/7/12 (“complaint”), Exhibit A). Hollis, a resident of Fort Wayne, Indiana, agreed to commute to appellant’s headquarters in Wayne, Pennsylvania, for the first two years of employment. {Id.). In addition to signing the offer letter, Hollis also signed an employee and noncompetition agreement dated September 30, 2010 {Id. at Exhibit B), six restricted equity grant agreements dated September 30,2010 (joinder complaint against additional defendants, filed 10/9/12 (“joinder complaint”), Exhibits C-H) and, later, three second amended and restated limited liability company agreements and two amended and restated limited liability company agreements effective September 21, 2011 (preliminary objections of [appellant MTPCS], filed 12/28/12, Exhibits 2-6). In relevant part, the documents provide as follows:

EMPLOYEE AND NONCOMPETITION AGREEMENT
THIS EMPLOYEE AND NONCOMPETITION AGREEMENT (this “agreement”) is made as of September 30,2010 between [appellant] MTPCS, LLC, a Delaware limited liability company (the “company”) and [appellee] Charles M. Hollis (the “executive”).
⅝ ⅝ ⅝ *
18. Consent to jurisdiction.
(a) EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE JURISDICTION OF ALL [528]*528STATE AND FEDERAL COURTS LOCATED IN PENNSYLVANIA, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD. EACH PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT, ACTION OR OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL OTHER THAN THE COURTS DESCRIBED ABOVE AND COVENANTS THAT IT SHALL NOT SEEK IN ANY MANNER TO RESOLVE ANY DISPUTE OTHER THAN AS SET FORTH IN THIS SECTION OR AS PROVIDED IN THE NONDISCLOSURE AND DEVELOPMENTS AGREEMENT, OR TO CHALLENGE OR SET ASIDE ANY DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS HEREOF.
⅝ ⅝ ⅝ ⅝
20. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT [529]*529IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

(Complaint, Exhibit B) (emphasis added).

RESTRICTED EQUITY GRANT AGREEMENT
THIS RESTRICTED EQUITY GRANT AGREEMENT (this “agreement”) is entered into as of [Sept. 30], 2010 by and between [third party LLC appellant], a Delaware limited liability company (the “company”) and Charles M. Hollis (the “executive”).
WHEREAS, the company and the executive have entered into that certain employment agreement, dated as of [Sept. 30], (the “employment agreement”), whereby the executive is accepting the position of executive vice president and chief operating officer; and
WHEREAS, the company and the executive desire to set forth the terms on which the company will grant and sell to the executive certain restricted equity interests in the company.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:
1. Definitions. For the purposes of this agreement, the following terms shall have the following respective meanings.
* * * ⅝
“LLC agreement” shall mean the limited liability [530]*530company agreement or operating agreement among the members of the company, as in effect from time to time.
* * * ⅝
6. LLC Agreement. By signing this agreement, executive agrees to be bound by the terms of the LLC agreement and thereby admitted as a Class B member (as defined in the LLC agreement).
7. Miscellaneous Provisions.
* * * *
(h) Consent to Jurisdiction. EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE JURISDICTION OF ALL STATE AND FEDERAL COURTS LOCATED IN DELAWARE, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD. EACH PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT, ACTION OR OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL [531]*531OTHER THAN THE COURTS DESCRIBED ABOVE AND COVENANTS THAT IT SHALL NOT SEEK IN ANY MANNER TO RESOLVE ANY DISPUTE OTHER THAN AS SET FORTH IN THIS SECTION OR AS PROVIDED IN THE NONDISCLOSURE AND DEVELOPMENTS AGREEMENT, OR TO CHALLENGE OR SET ASIDE ANY DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS HEREOF. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE TO VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN ADDITION, EACH OF THE PARTIES CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL SERVICE OR ANY MANNER IN WHICH NOTICES MAY BE DELIVERED HEREUNDER IN ACCORDANCE WITH SECTION 7 OF THIS AGREEMENT.
⅜⅜‡⅜
(J) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

(Joinder complaint against additional defendants, filed 10/9/12 (“joinder complaint”), Exhibits C-H) (emphasis added).

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Bluebook (online)
46 Pa. D. & C.5th 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mtpcs-llc-v-hollis-pactcomplmontgo-2015.