IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

John. J. Koresko, V and PennMont Benefit 

Services, Inc.

Plaintiffs, 

v. 

Jeff Bleiweis, Raymond Ankner, CJA and 

Associates, Inc., and The Travelers Life and 

Annuity Company

Defendants. 

Civil Action No. 04-CV-769 

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE TRAVELERS LIFE

AND ANNUITY COMPANY'S MOTION TO DISMISS COUNT III AND PART OF COUNT 

V OF PLAINTIFFS' COMPLAINT

Plaintiffs, John J. Koresko, V (“Koresko”)and PennMont Benefit Services, Inc., 

(“PennMont”) respectfully submit this Memorandum of Law in Opposition to the Motion to Dismiss 

filed by Defendant The Travelers Life and Annuity Company (“Travelers”) to Count III and Part of 

Count V of the Complaint. 

I. PRELIMINARY STATE MENT

This is an action for defamation, misappropriation of trade secrets, commercial 

disparagement, intentional interference with contract, interference with existing business 

relationship, interference with prospective business relationship and civil conspiracy. This is not a 

breach of contract action. 

Travelers approached John Koresko about one of his inventions, pretended that it 

wanted to learn more about that invention because it wanted to do business with Koresko, used false 

pretenses to obtain Koresko’s trade secrets and confidential proprietary information and then gave 

that information to one of Koresko’s direct competitors. Travelers knew that the information that 

PHIDOCS-36965.1
Koresko gave it was confidential and that it only received that information because it did not voice 

any objection to keeping that information confidential. 

Travelers has been caught red-handed. They have admitted to using Koresko’s and 

PennMont’s trade secrets. They have also been caught giving Koresko and PennMont’s trade 

secrets, proprietary information and intellectual property to one of Koresko’s and PennMont’s

competitors. Now Travelers is trying to get out of the predicament in which it finds itself by arguing 

that really, the only little thing that it did wrong, was to break its promise not to use the information 

that Koresko gave it in any way other than in a business relationship with Koresko, and so this action 

is really just for breach of contract. Travelers is incorrect. 

The essence of the complaint is the wrong ascribed to Travelers in obtaining 

confidential proprietary business information and intellectual property from Plaintiffs and then giving

that information to one of Plaintiffs’ competitors. The gist of this action is intentional tort consisting 

of misappropriation of confidential business information, use of trade secrets, and use of an invention 

with a patent-pending, all for Travelers’ own benefit. Because the gist of this action sounds in tort 

and because Koresko and PennMont would have a cause of action against Travelers even without any

agreement between the parties, the gist of the action doctrine does not bar the claims against 

Travelers and Travelers’ motion to dismiss should be denied. 

II. COUNTER STATE MENT OF FACTS

A. The Parties

Plaintiff Koresko is the General Counsel to Plaintiff PennMont Benefit Services, Inc., 

a certified public accountant licensed to practice in Pennsylvania, a nationally recognized author and 

speaker on the topic of the taxation of employee benefits, and an inventor and holder of certain 

intellectual property, copyrights, and patents pending regarding employee benefit plans. (Compl. ¶ 

4). 

PHIDOCS-36965.1 –2– 
Plaintiff PennMont is a Pennsylvania corporation, engaged in the business of national 

marketing, design, sales and administration of tax-advantaged employee benefit and pension 

programs for financial professionals and their clients. (Compl. ¶ 5). 

Defendant CJA ASSOCIATES, INC., (“CJA”) is an Illinois corporation actively

doing business in the Commonwealth of Pennsylvania engaged in the business of national actuarial 

consulting and marketing of insurance products and pension programs for financial professionals and 

their clients, and is the employer of Bleiweis. (Compl. ¶ 7). CJA has solicited business, including 

412(i) defined benefit programs using variable insurance contracts, in Montgomery County. CJA has 

directed mailings into Montgomery County. (Compl. ¶ 8). 

Defendant JEFFREY BLEIWEIS (“Bleiweis”) is in individual residing in the State of 

Illinois who serves as Senior Vice President and General Counsel of Defendant CJA, and whose 

article entitled “412(i) Defined Benefit Fully Insured Plans” (“the article”) was published and 

distributed to its members by SFSP in its June 2003 issue of “Business and Compensation Planning”. 

(Compl. ¶ 6). 

Defendant Travelers marketed and sold life insurance products, including, without 

limitation, variable universal life insurance policies, through CJA, Ankner and Bleiweis. Travelers is 

licensed in Pennsylvania. (Compl. ¶ 9). 

B. The Invention

Koresko is the inventor of a patent-pending pension program which uses variable 

insurance contracts to fund a defined benefit program [Variable 412(i) TM (patent pending)] (“the 

invention”). The invention is to be marketed and distributed exclusively by PennMont. The use of 

variable insurance contracts in a 412(i) defined benefit program is revolutionary in the insurance 

industry and has been projected to bring large revenues to the vendor who presents it, as it permits 

much larger deductions to participating employers; accelerated funding of a guaranteed pension 

payout; and the purchase of insurance contracts on a tax advantaged basis. As exclusive vendor of 

PHIDOCS-36965.1 –3– 
the Variable 412(i) defined benefit program, PennMont stands to reap substantial financial gains 

from marketing the invention. (Compl. ¶¶ 11 - 14). 

CJA is a competitor of PennMont and has been named as a Defendant by Koresko 

and PennMont in a separate lawsuit in this Court for violation of Koresko’s patent pending, that suit 

being 02 - CV - 014161. That lawsuit was brought by Koresko and PennMont to defend Koresko’ s 

trade secrets and invention when it was learned that CJA was marketing variable insurance contracts 

for use in a IRC § 412(i) defined benefit program. (Compl. ¶¶ 15-16). Thus, thwarted by its 

inability to compete with PennMont, CJA and Bleiweis engaged in a smear campaign intended to 

disparage the contractual relations, business interests and professional reputation of Plaintiffs. 

(Compl. ¶ 23). Bleiweis has personal knowledge of Koresko’s patent pending, its contents, its 

potentially explosive economic rewards and the lawsuit against CJA stemming from it. (Compl. ¶ 

20). 

C. The Problem

Travelers and other Defendants used Koresko’s and PennMont’s invention, materials 

and concept and marketed them as their own. 

Travelers approached Plaintiffs under the guise of partnering with PennMont to 

market and sell variable insurance and annuity products through a defined benefit program under 

§ 412(i) of the Internal Revenue Code, that Koresko developed. What Koresko developed – the use 

of variable insurance and/or annuity contracts in a 412 (i) defined benefit program – is revolutionary

in the insurance industry and has been projected to bring large revenues to the vendor who presents 

it. (Compl. ¶ 13). The invention is called “Variable 412(i).” PennMont was the exclusive vendor of 

that benefit program and Koresko and PennMont stood to reap substantial financial gains from

marketing that invention. (Compl. ¶ 15). Koresko and PennMont took all reasonable steps to protect 

the invention and a patent is currently pending. 

PHIDOCS-36965.1 –4– 
Travelers sought Koresko and PennMont’s § 412(i) plan business, the invention and 

the use of Koresko’s confidential materials and trade secrets. (Compl. ¶ 17). 

In October 2001, Koresko had a meeting with Travelers’ President Warren May,

Travelers’ Marketing Attorney Jeff Coppage, and Travelers’ General Agent, Ron Miles. (Compl. ¶ 

18). At that meeting, Koresko discussed confidential matters, including trade secrets and the patent 

pending regarding his invention. (Compl. ¶ 19). Travelers was well aware that the information that 

Koresko disclosed at that presentation was confidential and that Travelers was not permitted to use 

that information for its own benefit to the exclusion of Koresko and/or PennMont. (Compl. ¶¶ 20 – 

27). In September 2002, Mark Teitlebaum, Vice President for Advanced Marketing, attended a 

seminar given by Koresko. At that time, Koresko gave a presentation concerning issues relating to 

his soon to be patented variable 412(i) program. (Compl. ¶¶ 29 – 31). Mr. Teitlebaum was shown 

the confidentiality notice that was attached as Exhibit “1” to the Complaint and did not object to that 

notice; he stayed for the entire presentation and was aware that the information he was receiving was 

confidential. (Compl. ¶¶ 29 – 31). 

Prior to September 2002, Travelers decided to do 412(i) business with CJA. 

Travelers did not disclose that fact to Koresko or PennMont. (Compl. ¶ 34). Naturally, had Koresko 

been aware that Travelers was already working with one of its competitors, Koresko would never 

have extended an invitation to the September 2002 presentation and would not have given Travelers 

and Teitlebaum access to Koresko’s and PennMont’s intellectual property. (Compl. ¶ 37). At that 

September meeting, Travelers obtained confidential information from Koresko and PennMont and 

later used that information in their dealings with CJA, one of PennMont’s competitors. 

On November 25, 2002, CJA presented and Travelers sponsored a national 

teleconference for insurance agents and other insurance professionals which was advertised and 

broadcast into Pennsylvania generally, including Montgomery County and other parts of the Eastern 

District. During the presentation Travelers publicly endorsed the use of variable annuities in a 412(i) 

PHIDOCS-36965.1 –5– 
arrangement. (Compl. ¶ 38). In that call, Travelers and Teitlebaum specifically and knowingly

misappropriated Koresko’s intellectual property, to wit: Method 1, the allocation method set forth in 

Koresko’s patent application. (Compl. ¶ 39). During that telephone call and during other calls and 

communications, Travelers and Teitlebaum disparaged Koresko, PennMont and the invention. 

(Compl. ¶ 40). In the November 25, 2002 call and other communications, Travelers and CJA have 

disclosed confidential materials and trade secrets that Travelers’ personnel have gained through their 

meetings with Koresko and PennMont. (Compl. ¶ 41). 

D. The Conspiracy and Smear Campaign

Travelers and CJA conspired to violate Koresko’s and PennMont’s rights. In 

particular, Travelers used information that it received from PennMont in a joint venture with CJA, 

who is a competitor with PennMont. Together, CJA and Travelers marketed variable annuity

contracts for use in a 412(i) defined benefit program. (Compl. ¶ 53). In addition, CJA has solicited 

and marketed the use of variable annuity contracts for use in a 412 (i) defined benefit program. 

As if Traveler’s and CJA’s use of Koresko and PennMont’s invention were not 

enough, Defendants engaged in a smear campaign intended to disparage the contractual relations, 

business interests and professional reputation of Koresko and PennMont. Bleiweis, VP and General 

Counsel of CJA, deliberately made material misrepresentations of fact and law regarding Plaintiffs 

and the invention, causing harm to Plaintiffs as individuals and in the marketplace. (Compl. ¶ 70). 

Moreover, Defendants acted in concert to conspire to interfere and damage Plaintiffs’ prospective 

business relationships by deliberately publishing false and malicious statements regarding the 

invention and Plaintiffs’ ethical posture as a result of marketing said invention. (Compl. ¶ 71). 

The effects of that smear campaign are readily evident in the drastic decrease in 

enrollment and interest in PennMont’s Variable 412(i) plan and the corresponding increase in 

Traveler’s 412(i) business. Prior to interference by Bleiweis, Ankner and Travelers, PennMont had 

in excess of four hundred (400) proposals for Variable 412(i) pending for consideration by clients 

PHIDOCS-36965.1 –6– 
and their advisors. (Compl. ¶ 63). In addition, American General Life Insurance Company (“AG”) 

offered Plaintiffs licensing fees of $1.5 million for Variable 412(i). (Compl. ¶ 64). Now, as a result 

of the interference of Bleiweis, Ankner, CJA and Travelers, AG is not moving forward with its 

proposal to license and market PennMont’s Variable 412(i). Compounding the damage, several 

advisors withdrew their PennMont proposals from client consideration and upon information and 

belief placed that business with Travelers. (Compl. ¶ 65). 

Defendants were well aware that their actions would injure Plaintiffs’ business and its 

reputation in Pennsylvania and their actions did, in fact, cause significant harm to Plaintiffs’

individual and business reputations in Pennsylvania and elsewhere. 

III. AR GU M ENT

A. Standard ofReview

It is well established under federal law that a “complaint should not be dismissed for 

failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in 

support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 

(1957). When determining the sufficiency of the plaintiff's claims, the court “must take all of the 

well pleaded allegations of the complaint as true, construe the complaint in the light most favorable 

to the plaintiff, and determine whether, under any circumstances, the plaintiff might be entitled to 

any relief.” Bethel v. Jendoco Contr. Corp., 570 F.2d 1168, 1170 (3d Cir. 1978). Courts have an 

obligation in matters before them to “view the complaint as a whole and to base ruling not upon the 

presence of mere words but, rather, upon the presence of a factual situation which is or is not 

justiciable.” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), 

cert. denied, 532 U.S. 1038 (2001). 

Here, taking the allegations of the complaint as true and construing the complaint 

in the light most favorable to Plaintiffs mandates that the motion to dismiss be denied. 

PHIDOCS-36965.1 –7– 
B. The Gist ofthe Action Doctrine Does Not BarPlaintiffs’ Claims

1. Plaintiffs are nottrying to recoverin atort action whatis really nothing

more than a breach of contract. 

The “gist of the action” doctrine prevents a contracting party from pursuing a tort 

claim against the other party where the essential nature of the claim is contractual. Etoll, Inc. v.

Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002). In Redevelopment Authority

of Cambria County v. International Insurance Co., 685 A.2d 581, 590 (Pa. Super. Ct. 1996), alloc. 

denied, 695 A.2d 787 (Pa. 1997), the leading case setting forth the rule for deciphering the true 

character of a claim, the Pennsylvania Supreme Court emphasized: 

The important difference between contract and tort actions is that the latter lie

from the breach of duties imposed as a matter of social policy while the 

former lie for the breach of duties imposed by mutual consensus. 

Redevelopment Auth. of Cambria County, 685 A.2d at 590. 

If the tort claim “essentially duplicates a breach of contract claim,” it is barred under 

the gist of the action doctrine. Polymer Dynamics, Inc. v. Bayer Corp., No. 99-4040, 2000 WL 

1146622, at *6 (E.D. Pa. Aug. 14, 2000). Similarly, if the duty arose solely from the parties’

agreement, then the plaintiff cannot assert a tort claim and is limited to contractual remedies. If, 

however, the plaintiff alleges that the defendant breached a socially-imposed duty to which the 

contract is merely collateral, then the plaintiff can proceed on a tort theory of liability. Phico Ins.

Co. v. Presbyterian Med. Servs. Corp., 663 A.2d 753, 757 (Pa. Super. Ct. 1995); Greater Philadelphia 

Health Servs. II Corp. v. Complete Care Servs., L.P., No. 081790, 2000 WL 33711052, at *1 (Pa. Ct. 

Com. Pl. Nov. 20, 2000). 

In this case, the claim against Travelers for misappropriation is not duplicative of a 

breach of contract claim. As such, it is not barred by the gist of the action doctrine. 

PHIDOCS-36965.1 –8– 
2. The essenceofthe Complaintisthewrong ascribed to Travelers’in

obtaining and then misappropriating confidential and proprietary

information from Plaintiffs. 

In this case, Koresko and PennMont’s claims against Travelers’ do not duplicate a 

breach of contract claim. In fact, there is no separate claim for breach of contract in the Complaint. 

Moreover, Travelers’ duty not to use Koresko’s invention and proprietary information does not arise 

solely from the parties’ agreement. The essence of the Complaint is the wrong ascribed to Travelers. 

Travelers’ deception in obtaining Koresko’s trade secrets under false pretenses, its willful disregard 

for the patent-pending on Koresko’s invention, and disclosing Koresko’s trade secrets to one of 

Koresko’s competitors, are the improper conduct which is the gist of the action to which any

agreement is merely collateral, As such, the tort claims are not barred by the gist of the action 

doctrine. 

3. Koresko’s and PennMont’s claim for misappropriation oftrade secrets,

is not barred bythe gist ofthe action because any agreement betweenthe

partiesis merely collateralto Travelers’ wrongful conduct.

The gist of the Complaint is that Travelers mislead Koresko into disclosing his 

company’s trade secrets and his own invention so that Travelers could use that information for its 

own benefit, Travelers did use that information and dissemination of that information to Plaintiffs’

competitors. That Travelers agreed to the Confidentiality Notice shown in PennMont’s slide 

presentation, is merely collateral or incidental to the conduct at issue. As such, the gist of the action 

sounds in tort. 

To determine whether the gist of the action lies in contract or in tort, courts begin by

examining the agreement itself and the facts alleged in the complaint that are most pertinent to the 

tort claim to determine whether the gist of the action sounds in contract or in tort. Owen J. Roberts 

School District v. HTE, Inc., No. Civ. A. 02-7830, 2003 WL 735098 ( E.D. Pa. Feb. 28, 2003). In

Owen J. Roberts School District, plaintiff school district contracted with HTE to provide computer 

software. HTE’s contractual duties, including those which were at issue in that case, were set forth 

PHIDOCS-36965.1 –9– 
in several addenda to the contract. One of those addenda sets forth in detail HTE’s obligation to 

modify and improve certain features of the programs; those contractual terms were recited as 

responses to twenty-one questions and criticisms that the school district posed during the negotiation 

process. Id. at *1. HTE did not modify and improve its programs as it was required to do and the 

school district sued it for breach of contract and fraudulent inducement. The basis for the breach of 

contract claim was that HTE failed to modify and improve its programs as set forth in the contract. 

The basis for the fraudulent inducement claim was that HTE falsely represented to the school district 

that it could and would modify its programs when it knew full well that it was unable to do so. 

The court reviewed the complaint and concluded that since the duty that the school 

district alleged was breached was set forth in the contract, that the school district could not sue for 

both breach of contract and fraud. The school district’s breach of contract claim related to HTE’s 

failure to modify and improve its programs and the fraud claim related to HTE’s promise to modify

and improve its programs. The court concluded that since both causes of action related to terms of 

the contract, that only the breach of contract claim could stand. 

Owen J. Roberts School District is distinguishable from the case at issue. Here, 

Plaintiffs are not asserting a separate breach of contract claim. On the contrary, Plaintiffs are only

asserting a tort claim arising from Travelers’ misappropriation of trade secrets. In addition, Plaintiffs 

and Travelers did not negotiate and enter into a detailed and comprehensive contract which set forth 

each party’s obligations. On the contrary, the only agreement that is alleged to have been made was 

Travelers’ silent assent to the Confidentiality Notice shown during PennMont’s slide presentation. 

That notice contains the following statement: 

Much of the following information is proprietary and confidential intellectual 

property of John J. Koresko, V. [“Koresko”]. It is disclosed on the condition 

that the recipient, by viewing this information, agrees not to use this 

information in any way other than in a business relationship with Koresko, his 

affiliates, successors or assigns on terms agreeable to Koresko. 

PHIDOCS-36965.1 –10– 
(Compl. Ex. “A”). It is not simply Travelers’ silent assent to the confidentiality notice and then 

subsequent failure to adhere to its terms that forms the basis for Plaintiffs’ cause of action against 

Travelers. On the contrary, it is Travelers’ use of the trade secrets, confidential intellectual property

and proprietary information which is the gist of this cause of action. That Travelers implicitly agreed 

to keep the information confidential is merely incidental. 

Travelers relies on Bohler-Uddeholm v. Ellwood Group, Inc. in support of its 

contention that the confidentiality notice prevents Plaintiffs from asserting any cause of action other 

than breach of contract. 247 F.3d 79 (3d Cir. 2001), cert. denied, 534 U.S. 1162 (2002). Travelers’

reliance on Bohler-Uddeholm is misplaced and in fact, that case supports Plaintiffs’ position that it 

can bring a claim for misappropriation of trade secrets. The parties in Bohler-Uddeholm were joint 

venturers. One sued the other alleging breach of contract, breach of fiduciary duty, misappropriation 

of trade secrets and civil conspiracy. Id. at 86. The joint venture involved defendant selling goods 

provided to it by plaintiff. There was a dispute as to whether the defendant was properly accounting 

for his sales and whether he was entitled to reimbursement for overhead according to the terms of the 

joint venture agreement. Plaintiff alleged that defendant was not entitled to some of the 

reimbursement that it claimed, filed suit and alleged that defendant breached both the joint venture 

agreement and also breached its fiduciary duty by, in part, claiming reimbursements that were not 

due. Defendant filed a motion to dismiss asserting that the breach of fiduciary duty claim was barred 

since the gist of the action was really nothing more than a breach of the joint venture agreement. 

According to the defendant, the parties “exhaustively negotiated” an agreement that 

“completely defined the parties’ relationship and obligations.” Id. at 104. As such, plaintiff’s 

alleged losses arose only from a breach of that agreement. Id. Plaintiff on the other hand, claimed 

that defendant’s actions “caused losses that went beyond the scope of the Agreement, thus giving rise 

to a cause of action separate from the breach of contract claim.” Id. 

PHIDOCS-36965.1 –11– 
The court agreed with plaintiff and held that plaintiff’s claim for breach of fiduciary

duty met the “gist of the action” test since the tort wrong ascribed to defendant was the gist of the 

fiduciary duty action while the agreement was collateral. Id. at 105. The court concluded that 

because of the business relationship between plaintiff and defendant which created a fiduciary

relationship between the parties, that defendant had duties to plaintiff that went well beyond the 

particular obligations contained in the agreement itself. Id. at 105. Even though the parties 

negotiated a detailed agreement outlining the parties’ duties and even though defendant’s actions 

were a clear breach of one of its contractual duties, since those actions were also a breach of its 

fiduciary duty to plaintiff, plaintiff could bring two causes of action – one in contract and another in 

tort – for defendant’s improper conduct. Id.

Likewise in the case at issue, Travelers’ actions, while contrary to the confidentiality

notice to which it assented, went far beyond any “term” of that notice. Travelers not only used the 

confidential information that it obtained from Plaintiffs for something other than in a business 

relationship with Koresko, but Travelers gave that information to one of Koresko’s competitors, and 

used that information for its own benefit. As was the case in Bohler-Uddelholm, the “confidentiality

notice” to which Travelers assented in order to receive Plaintiffs’ proprietary information, is 

collateral to what Travelers actually did with the trade secrets and intellectual property that it 

obtained from Plaintiffs. As such, the misappropriation of trade secrets count passes the gist of the 

action test. 

Travelers also relies on Bohler-Uddeholm in support of its contention that because of 

the confidentiality notice, Plaintiffs are limited to suing Travelers for breach of that confidentiality

notice and may not bring a cause of action for misappropriation of trade secrets. While on its face, 

Bohler-Uddeholm may appear to support that contention, upon closer investigation, the differences 

between that case and the case at issue compel a different result. In Bolher-Uddeholm, the parties 

entered into an agreement which “was exhaustively negotiated and completely defined the parties’

PHIDOCS-36965.1 –12– 
relationship and obligations.” Id. at 104. Plaintiff admitted that defendant was “‘contractually

prohibited from doing’ the actions that plaintiff contends form the basis of its misappropriation 

claim.” Id. at 106. Since plaintiff acknowledged that the parties entered into a contract that 

prohibited defendant from doing exactly what defendant did with the proprietary information, 

plaintiff’s claim was really just a breach of contract claim since the contract defined the parties’

relationship. Id. at 106. 

In contrast, in the case at issue, Plaintiffs and Travelers did not “exhaustively

negotiate [a contract] that completely defined the parties’ relationship and obligations.” On the 

contrary, Plaintiffs showed Travelers a slide entitled “Confidentiality Notice” that Travelers is now 

trying to portray as a detailed and exhaustively negotiated contract in a vain attempt to thwart 

Plaintiffs’ ability to bring a tort action against Travelers. Unlike in Bohler-Uddeholm, the agreement 

was not exhaustively negotiated, it did not outline precisely what Travelers could and could not do 

with the information that it received. This PowerPoint slide is nothing like the extensive agreement 

negotiated in Bohler-Uddeholm or the contract in Owen J. Roberts Sch. Dist. Those agreements 

were exhaustively negotiated over months and in the case of Owen J. Roberts Sch. Dist, years, in 

writing, signed by the parties. The plaintiffs in each of those cases alleged that defendants did 

something that was expressly and specifically prohibited by the terms of the contract. In the case of 

Owen J. Roberts Sch. Dist, plaintiff was worried that defendant would do exactly what he did do – 

provide computer software that was not compatible with the rest of the system – and made that an 

express term of the contract. When defendant provided incompatible software, plaintiff could not 

recover both in tort and in contract for what was a breach of an express term of the contract. Here, 

Plaintiffs showed Travelers a slide that advised Travelers that the information it was about to receive 

was confidential and proprietary and would only be shown if Travelers agreed not to use the 

information in any way other than in a business relationship with Travelers. 

PHIDOCS-36965.1 –13– 
This case simply does not sound in contract but sounds in tort. For these reasons, the 

gist of the action doctrine does not bar the claims stated in Counts III and Count V. 

IV. C ONCLUSIO N

For the foregoing reasons, it is respectfully submitted that Travelers’ motion to 

dismiss should be denied. 

 Respectfully submitted, 

DATED: April 15, 2004

 Virginia I. Miller, Esq. 

 Pamela D. Hans, Esq. 

 ANDERSON KILL & OLICK, P.C. 

 1600 Market Street, Suite 2500 

 Philadelphia, PA 19103 

 Telephone: (215) 568-4202 

 Attorneys for Plaintiffs 

John J. Koresko, V and PennMont Benefit 

 Services, Inc.

PHIDOCS-36965.1 –14– 
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

John. J. Koresko, V and PennMont Benefit 

Services, Inc.

Plaintiffs, 

v. 

Jeff Bleiweis, Raymond Ankner, CJA and 

Associates, Inc., and The Travelers Life and 

Annuity Company

Defendants. 

Civil Action No. 04-CV-769 

ORDER

AND NOW, this day of , 2004, upon 

consideration of the Motion to Dismiss filed by Defendant The Travelers Life and Annuity 

Company to Count III and Part of Count V of the Complaint, and Plaintiffs’ response thereto, and 

after notice and a hearing, it is hereby Ordered that: 

The Motion is DENIED. 

BY THE COURT 

 

 J. Dalzell

PHIDOCS-36965.1 
CERTIFICATE OF SERVICE

I certify that at my direction a true and correct copy of the foregoing Brief in 

Opposition to the Defendants’ Motion to Dismiss and proposed order was mailed by first class mail 

to: 

DIANE SIEGEL DANOFF 

DECHERT LLP 

1717 Arch Street 

Philadelphia ,PA 190103 

ATTORNEY FOR THE TRAVELERS LIIFE AND ANNUITY COMPANY 

CRAIG R. TRACTENBERG 

NIXON PEABODY LLP 

1818 Market Street, 11th Floor 

Philadelphia, PA 19103

ATTORNEY FOR JEFF BLEIWEIS; RAYMOND ANKNER; CJA ASSOCIATES, INC. 

 

 

DATED: April 15, 2004 By: 

Virginia I. Miller (I.D. No. 85361) 

Anderson Kill & Olick, P.C. 

1600 Market Street 

Suite 2500 

Philadelphia, PA 19103 

Telephone: 215-568-4202 

Attorneys for Plaintiff 

PENN-MONT BENEFIT SERVICES, INC. 

PHIDOCS-36965.1