Free Motion to Amend/Correct - District Court of Delaware - Delaware

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EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO 1005 Baltusrol Lane Waxhaw, NC 28173 V CROSS COUNTRY BANK 50 Applied Card Way Glen Mills PA 19342

And APPLIED CARD SYSTEMS, INC. 50 Applied Card Way Glen Mills, PA 19342 And Rocco Abessinio 50 Applied Card Way Glen Mills, PA 19342

: : : : : : No. 07-1389 : : : : : JURY TRIAL DEMANDED : : : : : : : : : : : : :

Deleted: 101 Beverly Square Deleted: Kennett Square Deleted: PA Deleted: 19348

Deleted:

AMENDED COMPLAINT 1. Plaintiff is Kenneth J. Marino is a resident and citizen of North Carolina residing
Deleted: the Commonwealth of Pennsylvania

at the address first above written. 2. Defendant Cross Country Bank [CCB] is a Delaware banking corporation, with a

place of business at 800 Delaware Avenue, Wilmington, Delaware. 3. Defendant Applied Card Systems, Inc. [ACS]is a Delaware banking corporation,

offices located at 50 Applied Card Way, Glen Mills, Pennsylvania. Upon information and

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belief Defendant Abessinio is the President and/or CEO of Defendants CCB and/or ACS and can be served with judicial process at the offices of CCB and/or ACS.1 4. Plaintiff is an attorney licensed to practice law in the Commonwealth of

Pennsylvania. 5. Plaintiff was employed by Defendants as their general counsel. From October 1,

200o until February 14, 2001. 6. Plaintiff and Defendants entered into an employment contract on or about

September 11, 2000. 7. Plaintiff was terminated without cause by defendants for his efforts to change

Defendants predatory lending practices. 8. On or about September 4, 2003, plaintiff submitted an affidavit to the Attorney

General of the State of New York in response to a duly executed subpoena issued in accordance with a then on-going criminal investigation into Defendants lending practices. 9. On or about January 5, 2004, plaintiff brought an action for wrongful termination

against Defendants in the United States District Court for the District Court of Delaware. 10. Plaintiff and Defendant agreed to settle plaintiff's wrongful termination claim and plaintiff was released from all obligations of his employment contract with Defendants. 11. On April 26, 2004, Defendants instituted a civil action against plaintiff in the Court of Commons Pleas of Chester County, Pennsylvania.[hereinafter sometimes called the "Chesco Complaint" said Complaint being attached hereto as Exhibit "A" and incorporated herein by reference]

1

Mr. Abessinio also has homes in Delaware and Florida and Plaintiff is therefore unsure of Abessinio/s domicile/residency. However given Plaintiff's residence in North Carolina there is diversity jurisdiction as between Plaintiff and Mr. Abessinio regardless of whether he resides in Delaware, Florida or Pennsylvania.

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12. Defendants asserted three claims against plaintiff for breach of contract, breach of fiduciary duty and injunctive relief. 13. On August 24, 2005, the Court of Common Pleas of Chester County dismissed all three claims made by Defendants against plaintiff. 14. In dismissing defendants complaint, Judge Cody of the Court of Common Pleas of Chester County issued a bench opinion dated August 24, 2004 wherein she made the following findings of fact: (a). Plaintiff was released from his obligations under his employment contract with Defendants and therefore was not liable for breach of contract; (b). Plaintiff did not breach his fiduciary duty to plaintiffs or any Delaware Rule of Professional Conduct in his giving an affidavit to the Attorney General of the State of New York; and (c). Defendants were not entitled to an injunction to restrain plaintiff from responding to the requests for information from law enforcement officials regarding Defendants predatory lending practices. [The Bench Opinion is attached as Exhibit "B" hereto which was followed by an Order of the same date which is the last page of Exhibit "B"]
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COUNT ONE Plaintiff v CCB and ACS
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15. An action for wrongful use of proceedings, known also as Pennsylvania's Dragonetti Act, is described in pertinent part by statute as follows: § 8351. Wrongful use of civil proceedings (a) Elements of action.--A person who takes part in the procurement, initiation or

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continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing proper discovery, joinder of parties or adjudication of the claim which the proceedings are based; and (2) The proceedings have terminated in favor of the person against whom they are brought. 16. In the case at bar Defendants procured, initiated and continued a civil proceeding against Plaintiff herein. 17. In the case at bar Defendants procuring, initiating and continuing the action against Plaintiff herein Defendants acted grossly and without probable cause in that Defendants adduced no facts of record that demonstrated that the action was initiated with probable cause where they knew that plaintiff had been released from his duties under the employment contract, and were aware that plaintiff was merely complying with a subpoena of the Attorney of New York pursuant to an on-going criminal investigation. 18. Upon, information and belief, Defendants procured, initiated and continued the action against Plaintiff herein Defendants without probable cause for the improper purpose of preventing Plaintiff from testifying to certain Attorneys General regarding Defendants predatory lending practices. 19. As a direct and proximate cause of the Defendants filing an improper civil action Plaintiff has been damaged by agreeing to pay instant counsel a sum in excess of $80,000 in the nature of attorneys fees incurred in defending against the action filed in Chester

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County and then defending against the improvident appeals taken in that action all the way to the Pennsylvania Supreme Court. 20. As a direct and proximate cause of the Defendants filing an improper civil action Plaintiff has been damaged by suffering harm to his reputation. 21. The defendants have acted so wantonly and grossly especially with due regard to trying to use a civil action to prevent Plaintiff's testimony, that Plaintiff is entitled to an award of punitive damages to deter such reprehensible conduct in the future. WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally, for an amount in excess of $75,000, exclusive of costs and interest together with an award of pre and post judgment interest and such other relief deemed appropriate by court or jury.
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Deleted: having to pay attorneys fees to defend himself

COUNT TWO Plaintiff v CCB ACS and Rocco Abessinio
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22. Plaintiff repeats and re-alleges paragraphs 1 through 21 above as if the same were set forth at length herein. 23. The termination of Plaintiff's employment as described above caused Plaintiff to file a wrongful employment termination case against these same defendants said case having been filed in the United States District Court for the State of Delaware said case being filed on January 25, 2002. 24. The parties hereto entered into a settlement agreement of the wrongful termination case said settlement agreement being dated May 21, 2003. [The Settlement Agreement is attached hereto as Exhibit "C" and the Agreement is incorporated herein by reference]

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25. In paragraph 11 of the parties' settlement agreement the defendants undertook the explicit duty and obligation to refrain from disparaging Plaintiff in any fashion. 26. Paragraph 11 of the settlement agreement states in pertinent part: "Defendants and those acting at defendants' direction, shall not disparage, either by written or spoken word, Kenneth J. Marino, via any medium whatsoever, including but not limited to, email and communications over the internet, either in their own names or under assumed names, identities or aliases. A violation of this paragraph shall be considered a breach of this Agreement entitling the violating party to equitable relief and attorneys' fees and expenses as more fully set forth in paragraph 15 below. Additionally, violation of this paragraph shall constitute breach of this Agreement requiring the violating party to disgorge any and all benefits received under this Agreement, including but not limited to the Settlement Sum if applicable. 27. Paragraph 15 of the Settlement Agreement requires the violating party to pay all the fees and expenses of counsel for the party who is the victim of any violation of the Agreement. 28. Defendants CCB, ACS and Mr. Abessinio are parties and signatories to the subject matter Settlement Agreement. 29. At all times relevant, the lawsuit filed against Plaintiff as alleged above was filed at the behest and/or direction of Defendant Abessinio and at a point in time after the parties entered into the Settlement Agreement containing the Non Disparagement Clause described above.

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30. In paragraph 9 of the Complaint Defendants filed in the Chester County Court of Common Pleas ["Chesco Complaint" Exhibit "A" hereto] the Defendants contended that Plaintiff was a "disruptive" individual. 31. In paragraph 21 through 29 of Chesco Complaint Defendants accused Plaintiff of being an unethical lawyer. 32. As stated above Judge Cody in a Bench Opinion found that Plaintiff acted ethically at all times in discharging his duties as prior counsel for CCB and/or ACS. 33. On page 9 of Judge Cody's Bench Opinion which is attached hereto she made a finding that the predatory lending practices of CCB and/or ACS was an ongoing "fraud". 34. Defendants appealed Judge Cody's ruling to the Pennsylvania Superior Court and to the Pennsylvania State Supreme Court without success and thus Judge Cody's ruling is the "law of the case". 35. In addition to disparaging Plaintiff in the particulars of the Chesco Complaint, on February 27, 2004 Defendant Abessinio provided an Affidavit in connection with legal proceedings taking place in West Virginia wherein Abessinio accused Plaintiff of extorting funds from CCB. [See Exhibit "D" hereto which is incorporated herein by reference] 36. In paragraph 5 of said Affidavit which Plaintiff never saw or heard of until June 17, 2004, which is incorporated herein by reference, Abessinio made the following statement about Plaintiff "In my entire business experience I have never encountered anyone who manifested the level of anger, hostility and total disregard for ethical standards shown by Mr. Marino following his termination".

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37. In paragraph 9 of the Affidavit Abessinio claims that Plaintiff "was in breach of his fundamental duties as a lawyer" because Mr. Marino communicated with the New York Attorney Generals Office pursuant to a validly issued subpoena. 38. The Defendants are without any privilege to make the disparaging comments they made in both the Chesco Complaint and the Abessinio Affidavit. 39. Case law provides that the litigation privilege is inapplicable to shield parties who make disparaging remarks when those same parties have contractually undertaken a duty to refrain from making disparaging remarks. See Generally Eichelkraut v Camp 513 SE2d 267 (Ga. App 1999). 40. The legal fees and expenses incurred by instant counsel for Plaintiff in defending against the Chesco Complaint up through and including the briefing and oral arguments necessitated by the Defendants improvident appeal of Judge Cody's ruling stand in excess of $80,000 and are recoverable as damages under the Dragonetti laws as well as provided for in paragraphs 11 and 15 of the subject matter Settlement Agreement. 41. In addition to disparaging Plaintiff as set forth above, the Defendants CCB/ACS are presently engaged in a campaign to thwart Plaintiff's application to be admitted as a member of the bar of and for the State of North Carolina by suggesting Plaintiff lacks the required fitness and integrity to become a member of that Bar. 42. Plaintiff has incurred additional attorneys fees in defending against CCB/ACS improper attempts to thwart Plaintiff's admission to the North Carolina Bar. WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally, for an amount in excess of $75,000, exclusive of costs and interest together

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with an award of pre and post judgment interest and such other relief deemed appropriate by court or jury. Respectfully submitted, GIBSON & PERKINS P.C.
Deleted: WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally, for an amount in excess of $75,000 together with an award of pre and post judgment interest and such other relief deemed appropriate by court or jury.¶ ¶ R

_______________________________ BY: KEVIN WILLIAM GIBSON Gibson & Perkins PC 200 East State Street Media PA 19063 610.565.1708 [email protected]

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Deleted: VERIFICATION¶ ¶ ¶ I, Kenneth J. Marino, Plaintiff, herein, verify that he has personal knowledge of this matter and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief.¶ I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.¶ ¶ ¶ ¶ ¶ ________________________ ___________¶ Kenneth J. Marino¶ ¶ ¶

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EXHIBIT "A"

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EXHIBIT "B"

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EXHIBIT "B"

EXHIBIT "B"

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EXHIBIT "C"

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EXHIBIT "D"

EXHIBIT "D"

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO V CROSS COUNTRY BANK and APPLIED CARD SYSTEMS

: : : : : :

No. 07-1389

ORDER And now this day of 2007, upon review of the Plaintiff's

Motion to Amend his Complaint and the Defendant's response thereto, and oral argument if any , it is hereby ORDERED AND DECREED that the Motion is GRANTED.

_______________________________ J